Petty v. Hayden Bros.

115 Iowa 212 | Iowa | 1901

Deemer, J.

1 Plaintiff commenced an action against defendants, and caused a writ of attachment to issue, which was levied on certain printing materials then in Ft. Madison, Iowa. One Hyatt, trustee, intervened, but the various petitions filed by him were held bad on demurrer. On April 10, 1897, an order was made, on plaintiff’s application, for the sale of the attached property, which provided that the proceeds should be turned over to the clerk to abide the further determination of the respective rights of the plaintiff and intervener thereto. Pursuant to this order the property was sold, and the proceeds deposited with the clerk. On September 13, 189Y, and before the money was turned over to plaintiff, the II. U. Hayden Publishing Company intervened, claiming to be the owner of the property. At the same time Hyatt, as trustee, dismissed his petition, which was then pending on a motion to strike. A motion to strike the Hayden Publishing Company petition was overruled, and plaintiff filed an answer thereto, some parts of which will receive further attention as we proceed. After issues joined, and on the day before the case was reached for trial, plaintiff filed a motion for change of place of trial because of prejudice of the judge, and of undue influence of attorneys for intervener over the judge and the inhabitants of the county. The 'motion was not submitted until the case was called for trial, and was then overruled. The case then proceeded, with the result hitherto stated. It is contended that intervenor’s petition was filed too late. Section 3928 of the Code provides, in substance that any person other than defendant may intervene in an attachment proceeding at any time before payment-of the proceeds of the attached property to plaintiff. This is sufficient answer to the first point made by the appellant.

2 . II. The motion for change of venue was supported by the affidavit of plaintiff and of three disinterested witnesses. The bill of exceptions recites: “That on February 2, 1900, plaintiff’s said motion for change of place of trial was by the court overruled, on the ground that said motion was filed too late, and after said cause had been called and read .for hearing to a jury; that said cause had been called for trial at the beginning of said term, on January 8, 1900, and then passed until later to allow counsel for plaintiff therein to attend the supreme court, and had been called later in the term, and then passed again, until the trial of other causes; though the case had been thus called at different times during the term, the jury to try the same was not^called and impaneled until the morning of the day after the filing of said motion and immediately after same was overruled.” This statement must be accepted as a verity. Code, section 3506, expressly provides that no such application shall be allowed after a continuance. See, also, Finch v. Billings, 22 Iowa, 228. Moreover, such an application is to be decided by the judge according to the very right and merits of the matter. Code, section 3505. The judge was warranted in considering his own knowledge and conviction, and his ruling was so largely discretionary that we will not interfere. Garrett v. Bicklin, 78 Iowa, 115. Section 3507 of the Code, relied upon by appellant, merely fixes the place of trial, when the change is granted, and does not in any manner qualify section 3505.

3 III. Hyatt, trustee, is a mortgagee of the property and it is claimed that his intervention constituted an election, binding on the mortgagor, and that, as he (Hyatt) was defeated, intervener cannot recover, or, at least, that Hyatt’s intervention was binding on the owner of the property, and it cannot be heard to intervene. There is no merit in this contention. A mortgagee cannot, by his conduct estop a mortgagor, so as to prevent the mortgagor from asserting his rights as against a wrongdoer. There is no room here for the doctrine of election of remedies. The intervener has consistently occupied but one position, to-wit, that of claimant of the attached property |. Whatever the mortgagee may have done is entirely immaterial.

4 IV. Plaintiff filed a motion for security for costs based on the ground that intervener was a nonresident. This motion was overruled. The ruling was correct. At the time the motion was filed there was no statute authorizing such a motion. Acts Twenty-seventh General Assembly cured this seeming defect. See chapter 100 of the acts of that assembly. The general statute (Code, section 3847) has no reference to such proceedings as this. Estey v. Implement Co., 82 Iowa, 678; Meyer v. Evans, 66 Iowa, 179.

5 6 V. Intervener pleaded that it was a corporation organized under the laws of the state of Missouri. Plaintiff answered, denying that it was a corporation, for that no articles had ever been filed as required by law; that it had disposed of its property, gone out of business, and ceased, to exist. To prove corporate existence, intervener introduced a certificate under the hand of the secretary of state and the great seal of the state of Missouri to the effect that intervener was duly incorporated, and had filed the necessary articles with the proper officials. It also introduced the statutes of the state of Missouri, providing that such certificate should be taken as evidence of the corporate existence of the corporation. The certificate was objected to by plaintiff, but admitted over his objection. This ruling constitutes the basis of an assignment of error. This certificate, although insufficient, perhaps, to show a de jure corporation, was competent to establish a de facto one, and this is all that is necessary where corporate existence is a collateral matter. Cozzens v. Brick Co., 166 Ill. 213 (46 N. E. Rep. 788); 1 Greenleaf, Evidence, section 501, and cases cited. Section 906 of the Revised Statutes of the United States does not provide an exclusive method of authentication. 1 GreenPnf. Evidence, section 505 There was other uncontradicted testimony tending to show that intervener was a de facto corporation, and file admission of the certificate, even if error, was without prejudice. Abbott, Trial Evidence, page 34, and cases cited; Yakima National Bank v. Knipe, 6 Wash. 348 (33 Pac. Rep. 835). The court instructed, in effect, that intervener’s corporate capacity was sufficiently established. In view of the evidence which we have recited, and which was uncontra dieted, there was no error in this paragraph of the charge.

Other instructions are complained of, but, as they announced well settled propositions of law, they need not be set out.

No error appears, and the judgment is affirmed.