Searle v. Fairbanks, Morse & Co., 80 Iowa 307

Searle v. Fairbanks, Morse & Co.

80 Iowa 307 | Iowa | 1890

Given, J.

1. Judgement: against garnishee: fraud: setting aside. — I. Appellants maintain that this is a proceeding in equity, and that the demurrer should be sustained because plaintiff has a plain, speedy and adequate remedy under sections 31^ 3155; Code, and because the petition does not show that the defense has arisen or been discovered since the judgment complained of was rendered. If the petition shows grounds for relief either at law or in equity, the demurrer was properly overruled. An error as to the kind of proceeding's is not ground for demurrer, but for. correction, as provided in sections 2514, 2515, Code. One ground for relief is that the judgment was fraudulently obtained. The fraud alleged is that the attorney for the execution plaintiffs, being informed that the William Taylor whose money and notes the plaintiff held was not the William Taylor against whom the judgment was, agreed to drop any further proceedings against the plaintiff as garnishee, and, without notice to, and in' the absence of, the *311plaintiff, took judgment against him. This fraud did not arise, and consequently could not have been discovered, until the judgment was obtained. Herein the case differs from Hintrager v. Sumbargo, 54 Iowa, 604, and is within the provisions of section 2522, Code. That relief should be granted against such a fraud as that alleged requires no argument. The petition, showing as it does that the fraud did not arise until the judgment was obtained, and that it was not, and could not be, discovered until thereafter, presents a case for equitable relief.

2. The same: interest of garnishee to sustain action. II. Appellants contend that this case is being prosecuted by Searle alone, and that he has no interest

therein, and hence the demurrer should be sustained. The petition shows that no notice was given to the judgment defendant, William Taylor, of the garnishment proceedings, but was served on the William Taylor whose money and notes the garnishee held. Counsel argue that the judgment against Searle is conclusive as between him and his client Taylor, and cite Stadler v. Parmlee, 14 Iowa, 175. The marked difference between the cases is that in that case the liability of the garnishee was to the judgment defendant, while'in this it is to a Vtranger to the judgment. We need not determine whether Searle would be protected as against his client Taylor in paying this judgment; for, even if it were so, yet Searle has such an interest as entitles him to maintain this action.

3. Costs: judgment for under general prayer in equity. III. Appellants complain that judgment was rendered against them for costs, when no such judgment is as^e(^ in the petition. The petition asks for “ such other relief as equity will allow.” “Under a general prayer for relief in an equitable action, plaintiff is entitled to any relief in equity to which he is entitled under the facts pleaded.” Hoskins v. Rowe, 61 Iowa, 180. There was no error in rendering judgment against the defendants for costs. Our conclusion is that the judgment of the district court should be Affirmed.