95 Iowa 657 | Iowa | 1895
Plaintiffs, in their petition, allege in substance that they are judgment creditors of one O. J. 'Smith for goods and merchandise sold Smith in May and November, 1892; that in April, 1891, Smith executed to defendant Ellsworth a chattel mortgage on his stock of goods, under an agreement that it should be withheld from the records, so that Smith could buy goods on credit; that the mortgage was so withheld from record until May 25, 1892, when it was filed for record; that plaintiffs had no knowledge of the existence of the mortgage, and would not have sold Smith goods on credit had they known of the mortgage; that, immediately upon the filing of the mortgage, defendant Ellsworth, the mortgagee, and one Nagle, his attorney, took possession of the stock, and proceeded to foreclose the mortgage, but afterward surrendered it to one T. W. .Williams, to whom Smith had made a general assignment for the benefit of his creditors; that Williams thereafter sold the stock, and defendants claim to be the owners of the proceeds thereof in Williams’ hands by virtue of the aforesaid mortgage. The relief asked is that the mortgage be declared void as against plaintiffs’ judgment, and that the property be declared subject to the levy of an execution issued thereon. The defendants, after pleading what amounts to a general denial, filed an amendment to their answer, which was in two divisions; the first reciting that in December, 1892, defendant Ellsworth brought an action in the district court of Hardix county against O. J. Smith and P. M. Williams, assignee, to foreclose the mortgage heretofore referred to, and to have the same declared a prior lien upon the stock of goods covered by the deed ©f assignment to Williams; that in said action the
Appellees contend that plaintiffs are not entitled to the relief demanded because the assignee was not made a party to the suit. We do not think the question
The district court correctly overruled plaintiffs’ demurrer, and the judgment is affirmed.