75 Iowa 713 | Iowa | 1888
— It is stated in the petition that J. F. and James Garrity executed certain promissory notes to the plaintiff, and had disposed of their property to defraud their creditors; that the defendant Mathews purchased certain property of J. F. Garrity, and obtained from the latter certain promissory notes, secured by mortgage on real estate, and thereby certain indebtedness which Garrity owed Mathews had been paid and satisfied; that said Garrity, claiming to be acting for Mathews, sold and transferred to the defendant Welch certain notes and accounts, for which Welch agreed to pay Garrity, and that Mathews had no interest in said notes and accounts; that James Garrity is the owner of certain described real estate, and executed a mortgage thereon to Matthews for the purpose of defrauding the creditors of the former; that said Garrity has a large, amount of personal property and credits, and other real estate, which should be subjected to the payment of his debts, “which plaintiff cannot discover without answer and discovery from James Garrity;” that the “Garritys and Mathews fraudulently combined and colluded together to cover up and conceal the property-rights and credits of said Garritys to prevent the same from being reached by their creditors, and subjected to the payment of their debts, whereby the plaintiff especially has been injured and defrauded, and can only obtain relief in equity.” The relief asked is judgment for the amount due on the notes payable to the plaintiff executed by the Garritys; that an attachment may issue against the Garritys, and that they
I. This action was tried in the district court as an equitable proceeding, and it will be so tried and determined in this court. The district court rendered judgment for the plaintiff, and also that the “ plaintiff is entitled to subject the notes and accounts in the hands of said Welch, which accrued prior to April 30, 1885, to the payment of his said debt under his attachment and garnishment of said Welch herein, or a sufficient amount thereof to satisfy his said debt, interest and costs.” And it was also adjudged that “plaintiff be subrogated to all the rights of J. F. Garrity in said notes and accounts, * * * and he may proceed under his attachment and garnishment herein to subject the same to the payment of his debt; * * * and said Welch is adjudged to hold the same subject to plaintiff’s said claim.” It is to this portion of the judgment that counsel for appellants object. It may possibly be inferred from the language used by the court that there was evidence tending to establish the recited material facts. We, however, have been unable to discover any evidence in the record which tends to establish that Welch was garnished, or that the makers of the notes or persons indebted on the accounts transferred to him were garnished. Nor do we understand it to be alleged in the petition that plaintiff had obtained a lien on any specific property by attachment and garnishment.
The judgment of the district court must therefore be modified and affirmed, and the parties, or either of them, are entitled to a decree in this court if they so elect.
Modified and Affirmed.