Sweet, Dempster & Co. v. Oliver

| Iowa | Oct 22, 1881

Seevees, J.

i. equitable injunction1]: duvuefmortsas®‘ It will be observed the petition does not allege the insolvency of Mrs. Webster. It is not deemed es-sent‘al set out at length the allegations of the ailswer. It being, we think, sufficient to state that it denies all fraud and asserts the mortgages were given to secure actual indebtedness or liabilities assumed by Mrs. Webster for the mortgagor. It was averred Mrs. Webster was solvent and able to pay any judgment that might be obtained against her as garnishee. Affidavits were read at the hearing to dissolve, but the allegation as to the solvency of Mrs. Webster was not controverted.

The statute provides mortgages of personal property may be foreclosed by notice and sale without action in court, and that « the right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested by any one. interested in so doing, and the proceeding may be transferred to the District or Circuit Court, for which purpose an injunction may issue if necessary.” Code, § 3317.

Counsel for the appellee, in addition to the section just quoted, cite Hanlin v. Parsons, 33 Iowa, 207" court="Iowa" date_filed="1871-02-22" href="https://app.midpage.ai/document/hanlin-v-parsons-7095115?utm_source=webapp" opinion_id="7095115">33 Iowa, 207, and Braitch v. Guelick, 37 Id., 212. In those cases there was no way of contesting the amount due-or the right to foreclosure unless the proceeding to foreclose by notice and sale was transferred as the statute provides. Hence it was necessary to obtain an injunction to restrain the sale and make the transfer.

We do not believe the meaning and intent of the statute is that an injunction should issue and the transfer be made in all cases as a matter of right, but that it may be done when necessary to protect the rights of any one interested. If there is a full and complete remedy at law, then the general rule applies, that a resort to equity cannot be sanctioned.

It will be conceded that plaintiffs had two remedies, one being to garnish the mortgagee, and thus at law contest'the amount due and the validity of the mortgage, or obtain an injunction and transfer the foreclosure proceeding, and thus in an equitable proceeding accompliish the same result. Instead of contenting themselves with either, the plaintiffs have adopted and insist on both. The garnishment proceeding was first in point of time, and afforded a full and complete remedy, and therefore a resort to equity cannot be had. The injunction was not necessary in order to afford the plaintiffs full and complete relief. The sale of the goods was not restrained because, as counsel states, they were being “sold to good advantage.” An injunction restraining the application of the proceeds would not only be of no benefit as to Mrs. Webster if solvent, but positively injurious to all parties because interest would be accumulating while the money was lying idle.

There is no difference in principle between this case and Silverman, Lindauer & Co. v. Kuhn, 53 Iowa, 436" court="Iowa" date_filed="1880-04-22" href="https://app.midpage.ai/document/silverman-lindauer--co-v-kuhn-7098861?utm_source=webapp" opinion_id="7098861">53 Iowa, 436. The action to dissolve the injunction should have been sustained.

Because conducing to brevity, nothing has been said as to Hyde & Brothers, and we understand from the stipulation of •tlie parties they are not in possession, and there is no reason why the whole matter at issue cannot be determined in the garnishment proceeding.

Reversed.