Kelly, Maus & Co. v. Andrews, 94 Iowa 484

Kelly, Maus & Co. v. Andrews

94 Iowa 484 | Iowa | 1895

Granger, J.

The defendant and the garnishee are husband and wife. The defendant, J. H. Andrews, is a judgment debtor of the plaintiff firm. Mary E. Andrews was garnished on execution, and, having answered, issue wasi taken thereon. In the pleading taking such issue are three divisions, in the first of which there is a denial of the statements in her answer that she was not indebted to J. H. Andrews, and then an allegation “that said Mary E. Andrews is now indebted to the said J. H. Andrews in the sum of ten thousand dollars.” The second division described certain real estate of which J. H. Andrews was the owner, and then avers that it was fraudulently conveyed to the garnishee to defraud the creditors of J. H. Andrews, because of which the garnishee is indebted to J. H. Andrews in the sum of five thousand dollars. The third division is a showing that, to secure an indebtedness owing by J. H. Andrews to the garnishee, a chattel mortgage was 'executed, pledging as security for the debt an amount of personal property largely in excess of the debt, for the purpose of hindering and delaying creditors; that there was a pretended foreclosure of the mortgage by an agent of the garnishee, and that the sale was so conducted as not to attempt to secure a fair price for the property, for the purpose of defrauding creditors, and the same was SO' sold; and plaintiffs ask judgment in the sum of one thousand one hundred dollars. On motion of the garnishee the *486second and third divisions of the pleading were stricken out. The plaintiffs then, by way of “amending their denial of the answer of the garnishee herein, and further taking issue with the garnishee upon her answer,” filed an amendment to its pleading, which amendment the garnishee now moved to strike, on several grounds, one of which was that it was substantially a repetition of the two divisions before stricken out, which motion the court sustained. The remaining issues were then tried to a jury, which returned a verdict for the garnishee. The court then sustained a motion for a new trial and in arrest of judgment. It then appears, by an additional abstract by appellee, which we take to be true, that on plaintiffs’ motion the order striking their “plea of issue with the garnishee” was set aside, and the garnishee took issue thereon. The garnishee then moved to transfer the cause to the equity side for trial, and the court sustained the motion, against the objection of plaintiffs. The cause then proceeded to trial as an equity case. It is now urged by appellants that the court erred in transferring the cause to equity for trial. The theory upon which the transfer was made is that the amendments- presented equitable issues-. This is a mistake. There is not an equitable issue in the case. The averments are entirely of fraudulent acts, for which it is sought to make the garnishee liable in dollars and cents. It is- true that when equity obtains jurisdiction it will sometimes grant relief in the way of a money judgment only, but the mere averment of fraudulent conduct as the basis of such a judgment does not present an equitable issue. In this case no relief of any kind was asked more than there would be in an action on a promissory note or for a mere trespass. To determine if a cáse is one for equitable consideration, we look to the relief sought. In Price v. Insur*487ance Co., 80 Iowa, 408, referring to the section of the Code (2517) providing for the transfer of causes, commenced by ordering proceedings for trial in equity, it is said: “An issue is not equitable, within the meaning of the section quoted, so long as the relief asked or the defense interposed is not equitable.” The defense of the garnishee in this case is a denial. There is no decree asked, nor is the condition of the property, said to be fraudulently transferred, sought in any way to be changed, nor the title thereof to be affected. If on a trial there is a judgment against the garnishee, it must be based on a finding that she has fraudulently converted her husband’s property to her own use, so that she is indebted therefor, and the judgment or order would be for the payment of an amount, on which a general execution may issue. Code, section 3026. The case has none of the elements of an equitable proceeding, and the plaintiffs were entitled to have the issues tried to a jury.

The garnishee also appealed, but her appeal is only from a finding of fact by the court which will be, because of our conclusion on plaintiffs’ appeal, set aside, and hence there is nothing on her appeal to consider. The judgment is reversed.