157 Iowa 270 | Iowa | 1912
— This case has been before us on a former appeal. 144 Iowa, 147. Eeference may be had to our opinion on the former appeal for many of the details.
That the plaintiffs knew the time when $7,900, the proceeds of a tract of land belonging to the estate of M. P. Snavely, deceased, would be paid to Milton Remley, attorney for the said defendant; that the plaintiffs well knew that $1,000 of said fund would be turned over to the said defendant in her individual right, and that one-half of the balance equitably belonged to the said defendant individually, and, had the same been turned over by the said attorney to the said defendant, she would have been entitled to receive therefrom her interest in said fund amounting to between $4,500 and $5,000, and, for the purpose of depriving the said defendant individually of the use of said money, the said plaintiffs maliciously directed the said Milton Remley to be garnished, well knowing that the said garnishee could not in the face of said garnishment pay over the said fund to the said defendant, and well knowing that the said garnishment served upon the said garnishee would necessarily retain the said fund in the hands of the garnishee until the garnishment was disposed of; that, while the fund thus garnished may technically have belonged to the said defendant as trustee or executrix, yet the plaintiffs well knew that she had an individual interest therein, and that she could not make distribution to herself or others until the said garnishee was released from the said garnishment, and, for the- purpose of injuring the said defendant, the said plaintiffs caused the said fund to be garnished in the hands of the said garnishee to deprive her, and they did deprive her, of the use and enjoyment of her interest therein, to the great damage of the said defendant in the sum of, to wit, $300.
The motion to discharge it (the attachment) was sustained on the theory that defendant was holding the property attached by garnishment either as executrix or trustee, and that plaintiffs were not entitled to any aliquot or part-thereof until an accounting in the court of probate or otherwise. Defendant was not claiming the money attached as 'her own, nor could she under this record, for it was not hers. • She was entitled to it in a representative capacity as trustee or executrix, and upon that theory she secured the release of the garnishment. She does not now claim that in her individual capacity she was entitled to this fund. She and her attorneys frankly admit that save as to $1,000 plaintiffs had as much right to the proceeds as she 'did, and it must have been on this, theory that the garnishment was discharged. . . .We don’t think that the garnishment of the attorney as debtor of defendant in her individual capacity prevented this attorney from paying over the money to the defendant in her representative capacity as trustee or executrix. He, in fact, owed her no more individually than he owed the plaintiffs. He was holding the money for the defendant purely in her representative capacity, and she could not in her own right recover the money from him. . . . The garnishee, Eemley, made no answers to the notice of garnishment and we don’t think that under the garnishment he was obliged*274 to hold any funds which belonged to, or was responsible for any debt owing to defendant as executrix or trustee. She was no more entitled thei’eto in her individual capacity than were the plaintiffs, who had practically the same interest in the funds that she did. . . .
We think the ruling of the trial court was in accord with our holding, and it must therefore be affirmed.
' Appellant’s motion to strike amended abstract of appellee must be overruled. Such amendment, however, does include considerable unnecessary matter. Only 'one-half the cost thereof will be taxed in favor of appellee.— Affirmed.