184 Iowa 859 | Iowa | 1918
I. In a suit brought by appellant, Schultz, the appellees Sylvester, on March 31, 1913, amended a counterclaim interposed in said suit by August Sylvester, to the effect of pleading that all claims against Schultz were the joint property of both the Sylvesters. Prior to and up to the time of this amendment to pleadings, and before any suit was pending wherein to interpose'this counterclaim, one Vance obtained judgment against C. A. Sylvester, which is still unpaid. While said amended counterclaim was pending, and on January 5, 1914, Vance assigned his judgment to Schultz. Four days later, C. A. Sylvester assigned his interest in the counterclaim to August. Notwithstanding the assignment, judgment on the counterclaim was, on January 17th, entered in favor of both Sylvesters. On January 20th, Schultz levied the Vance judgment on what interest C. A. Sylvester might have in said counterclaim judgment. Later, Schultz sought to spt off the Vance judgment against the counterclaim judgment. To sustain the attempt, he asserted that.the Vance judgment was in existence long before the Sylvesters 'claimed anything of him, Schultz; that the assignment from Vance to Schultz is four days earlier than that from C. A. Sylvester to August; that the'assignment to August was collateral security for payments made by August for C. A. Sylvester; and that August has a large amount of real prop
II. The contention that the court should not have gone into the question who owned the counterclaim judgment rests upon the argument that the prayer and the form of that judgment constitute an adjudication that said judgment is the property of both the Sylvesters, and that any attempt to show that one of them was the sole owner thereof is a prohibited impeachment of the record, and that sustaining such impeachment nullifies an estoppel by record. Many authorities are cited to the effect that a record imports absolute verity, and that no one may impeach it (among them is 23 Cyc. 855, and Mornyer v. Cooper, 35
It is but begging the question to cite authorities for the proposition that a judgment may be the subject of levy and of set-off. Code Sections 3465, 3977, 3978. True as it is that it may be seized or set off, it is also true that, to subject it to either seizure or set-off, it must be either jointly or severally the property of the judgment debtor. See Bell v. Perry & Townsend, 43 Iowa 368.
III. The court found that, as between the Sylvesters, August was the sole owner of the judgment against Schultz. Despite the fact that the judgment in question was, in form, a judgment in favor of both the Sylvesters, it cannot be seriously claimed that the form of this judgment deprived the court of the right to hold, between the Sylvesters, that in truth it belonged to but one of them. Before the judgment was ever entered, C. A. Sylvester assigned to August his interest in the claim upon which judgment was finally obtained. Certainly, the subsequent entity of the judgment in the.form that it was entered did not cancel that transfer, as between the parties to the transfer. If no third party had intervened, surely August could establish that, oh
The finding of the court that the property which Schultz sought to subject to his judgment, was not the property of Schultz’s debtor, is not so lacking in support as that Ave may interfere. We hold further that, in the state of the evidence, Ave may not interfere with the finding that the assignment to August was not covinous and in bad faith.
This reduces the position of the appellant to the one point that the Yance judgment Avas in existence long before the suit was begun in which the counterclaim judgment was entered, and that Schultz became the assignee of that judgment four days earlier than the execution of the assignment from C. A. Sylvester to August Sylvester.. We