88 Iowa 641 | Iowa | 1893
There is no dispute as to the following facts: For some years next preceding June 10, 1889, the defendant Kelley was engaged in the retail grocery business in the city of Dubuque, having three stores, one at number 737 Main street, one at 1179 Iowa street, and one at number 5 South Locust street. On May 16, 1888, the defendant Kelley executed a chattel mortgage to the defendant Linehan on all of the goods and fixtures in said stores, “and all additions that may be hereafter made to said stocks,” and on a delivery horse and wagons, to secure an existing indebtedness of one thousand, four hundred dollars, for borrowed money. This mortgage was not filed for record until June. 8, 1889, and the plaintiffs had no knowledge thereof until the same was so filed. Betwen the time said mortgage was executed and the day it was filed for record, the plaintiffs, wholesale dealers in other states, sold goods on credit to the defendant Kelley, and on June 8 and 12, 1889, obtained judgments for the balances due them, respectively. On June 12 and 14, 1889, notices of' garnishment were served on the defendant Linehan, on each of said judgments, and his answers afterwards taken. It does not appear that any further proceedings were had under the garnishment. On Sunday, June 9, 1889, the day following the filing of said mortgage for record, there was a conference between Kelley and some of' his creditors, including one W. J. Brown, general manager for Mr. Linehan, who was acting for him. Mr. Line-* han was at the.place of meeting, but there is a dispute as to how long he remained, and what took place in his presence. There is no dispute, however, but that the opinion was generally expressed that Kelley should make a general assignment for the benefit of all his creditors. At the request of Mr. Linehan, made to Kelley at the place of- the conference, Kelley went to Linehan’s house that Sunday evening, between
“Section 3150.’ At' any time after the rendition of a judgment, an action by equitable proceedings may*648 be brought to subject any property, money, rights, credits, or interest therein, belonging to the defendant, to the satisfaction of such judgment. In such action, persons indebted to the judgment debtor, or holding any property or money in which such debtor has any interest, or the evidences of securities for the same, may be made defendants.”
‘ ‘Section, 3152. In the case contemplated in the two preceding sections a lien shall be created on the propei’ty of the judgment debtor, or hisdnterest therein, in the hands of ány defendant or under his control, which is sufficiently described in the petition, from the time of the service of notice and copy of the petition on the defendant holding or controlling such property, or any interest therein.”
It is clear, from these statutes and facts, that plaintiffs were entitled to commence this action, though they had no lien or interest in the property in question at that time, and that under said section 3152 they acquired a lien thereon by the commencement of the action and service of notice. It is said in argument that this-kind of action must be against the judgment debtor, and those who are endeavoring to aid him in covering up or concealing his property may be brought into the action secondarily, and that no relief is asked against Kelley, and therefore relief can not be granted against his mortgage. The plaintiffs have their judgments against Kelley, and desire no further relief as to him. Their action is properly against those charged with concealing or covering up his property. We think the case is strictly within the provisions of the sections of the Code quoted, and that the district court erred in dismissing the plaintiffs’ petition.
The judgment and decree of the district court are reversed, and the case will be remanded for judgment and decree in. conformity with this opinion. Reversed.