182 Iowa 826 | Iowa | 1918
The garnishee is' a live stock commission agent, engaged in business at the stockyards of Sioux City. The funds in its hands are the proceeds of a shipment of stock consigned to it for sale for Flagstad. Flagstad is a farmer, and a resident of South Dakota. The intervener is a bank, -engaged in business at Webster, in the same state. The record discloses no dispute in the evidence upon any material fact. Flagstad is a man of no means. The fair inference from the evidence is that he is insolvent. Some time prior to October 23, 1916, the plaintiff had obtained a judgment against him in South Dakota. At about the time of the shipment of the cattle in question, the plaintiff brought an action in Woodbury County upon such foreign judgment, and sued out a writ of attachment and served •the same by garnishment, as already indicated. The intervener’s claim to the proceeds of the cattle thus sought to be
In order to dismiss the intervener’s petition, the trial
The description in the intervener’s mortgage was as follows:
“* * *, the following described property, now in my possession in the town, county and state aforesaid, and free from all incumbrances, to wit: Eighty-four (84) cattle, located on the northwest quarter of the southeast quarter, Section 9, Township 123, Range 53, and south one half of southwest quarter Section 9, and south one half of northwest quarter Section 16, and south one half of northeast quarter Section 17, and northwest quarter of southeast quarter Section 17, in Township 123 North, Range 53, and west one half of northwest quarter of northwest quarter Section 22, Township 123 North, Range 53, and bought of the following parties: Waddel’s auction, 3 steers and 3 cow. S. T. Lasell, 7 cattle. Frank Rumpoa, 3 steers. Frank Block, 8 steers. Albert Morris, 1 steer. Anton Block, 1 steer. Carl Sten, 9 cattle. Frank Rumpoa, 1 steer. S. T. Lasell, 1 cow. F. F. Block, 2 steers. Ed Burns, 2 steers. August Golombiewski, 1 cow and 1 steer. Jacob Rumpoa, 1 cow. August Skroi, 1 cow and 2 steers. Anna*832 Moitks, 6 cattle. W. J. Johnson, 5 steers. John Nelson, 3 steers. Lars Erickson, 3 steers. Jacob Pionk, 6 cattle. Ed Erickson, 3 steers. Frank Figurski, 2 cattle. Tillie Block, 2 cows. T. P. Snaza, 2 steers. Frank Kurkowski, 1 cow. Bernard Henning, 5 steers. Frank Block, 1 steer.”
The description was also sufficient under the law of South Dakota, where the mortgage was made. Advance-Thresher Co. v. Schmidt, 9 S. D. 489 (70 N. W. 646); First Nat. Bank of Redfield v. Koechel, 8 S. D. 391 (66 N. W. 933); Coughran v. Sundlack, 9 S. D. 183 (70 N. W. 644); Crow v. Zollars, 11 S. D. 203 (70 N. W. 921); Reynolds v. Strong, 10 N. D. 81 (85 N. W. 987).
The subsequent mutual selection of the 11 head by the parties to the mortgage was itself an identification of the mortgaged property as between them. We must hold, therefore, that, as between the parties thereto, the mortgage was valid.
So, in this case, the fact that the funds of Cooper and those of La Salle were commingled, furnishes no insuperable difficulty. La Salle drew $1,000. He is presumed to have drawn his own out of the mass. His right to it is disputed by no one. He claims no more. This leaves the remaining funds to the intervener, without any conflicting claim thereto except that of the attaching creditor.
We hold, therefore, that the commingling of the funds impaired no rights of the intervener to the remaining funds which are not claimed by the other beneficiary. We reach the conclusion, therefore, that none of the grounds upon which the intervener’s claim was assailed are tenable. It necessarily follows that, as to the attaching creditor, the garnishee should have been discharged, and that the fund in question should have been awarded to the intervener. The judgment below is accordingly — Reversed.