23 N.W.2d 435 | Iowa | 1946
On November 17, 1939, plaintiff, Ruth Whittier, was divorced from defendant, Arnold Whittier, by the district court of Linn county. On that date there was filed with the clerk of that court a stipulation of settlement, signed by the parties, which states in substance:
"* * * that in the event the Court grants to the Plaintiff herein a divorce, that the property rights of the parties hereto are hereby settled and agreed upon in accordance with the following terms and provisions * * *:
"1st — The Plaintiff is awarded the care, custody and control of her minor son, Kenneth Whittier * * *.
"2nd — The Defendant is to pay as permanent alimony for the Plaintiff herein the sum of $30 per month, payable in advance commencing on the 1st day of December, 1939, and *657 payable at the office of the Clerk of the District Court of Linn County, Iowa."
The stipulation also provides for the sale of the parties' homestead and equal division of the proceeds between them; plaintiff is awarded all household furniture except three named articles and defendant's personal effects; a certain described cemetery lot "is hereby decreed to be the joint property of the Plaintiff and Defendant herein, in equal shares"; the court costs of $10 and the $50 fee of plaintiff's attorney "shall be paid in equal proportions by the Plaintiff and Defendant herein. The Defendant herein is awarded the title and possession to the certain Pontiac coach now owned by him, free from any claim or lien of the Plaintiff * * *."
The decree of divorce "finds that the allegations of said petition are true, and that plaintiff is entitled to a decree of divorce and such other and further relief as herein [therein] prayed," and recites:
"It is therefore further ordered, adjudged and decreed by the court, that said plaintiff be and she is hereby divorced from the defendant * * *. The rights of the parties hereto are fixed in accordance with the terms of the Stipulation of Settlement attached hereto and made a part of this Decree."
Plaintiff's petition prays for a divorce, the custody of her minor son Kenneth, alimony, attorney's fees and costs, and such further relief as may seem equitable.
The vital question upon the merits of this appeal is whether the last sentence of the above-quoted portion of the decree, in connection with paragraph 2 of the stipulation of settlement, also quoted above, constitutes an order or judgment which can be legally enforced by execution.
On June 26, 1945, plaintiff filed with the clerk of the trial court an affidavit dated April 30, 1945, that up to and including that date "defendant will owe me the sum of $270 back alimony payments for which I am entitled to an execution." The affidavit requests the issuance of an "execution in the amount of $270 for permanent alimony up to and including April 30, 1945." The clerk issued execution as requested and *658 the sheriff, probably as directed by plaintiff's counsel, attempted to garnish defendant's employer. The garnishee answered that it was not indebted to defendant but that another corporation with a similar but not identical name was defendant's employer and was indebted to him in a certain amount. No pleading was filed controverting the answer of the garnishee. In view of our disposition of the appeal we may assume, without deciding, that defendant's employer was garnished.
Defendant filed a "motion to quash execution and for other relief," which states that the divorce decree does not render any money judgment against him, no such judgment has ever been entered, and no legal notice of garnishment was ever served upon defendant's employer. The motion asks the court to "decree that there is no judgment against the defendant in said cause for the payment of money," to quash the execution and garnishment, and for such further order as is necessary to secure the release of funds withheld from defendant by his employer. This motion was submitted upon the files and records in the case, the garnishee's answer, and statements of counsel.
The court entered an order and judgment holding that the divorce decree "with the stipulation thereto attached does not constitute a judgment * * * in favor of plaintiff for $30 per month or for any other sum," no such judgment has ever been entered, the execution and garnishment were void and are quashed, the funds in the hands of the garnishee released and the garnishee discharged. From this adjudication plaintiff has appealed. We understand plaintiff concedes, probably for reasons hereinafter indicated, she is not entitled to a reversal of that part of the adjudication which released the funds attempted to be garnished and discharged the garnishee. However, plaintiff challenges the holding that she has no judgment against defendant for the payment of money.
[1] Both defendant and the garnishee have moved to dismiss the appeal. One ground of each motion is that the amount in controversy is less than $300 and the trial judge did not certify "that the cause is one in which appeal should be allowed." *659
(See Rule 333, Rules of Civil Procedure.) It appears without dispute that the amount sought to be held under the garnishment was $193.96. This was the amount in controversy betweenplaintiff and the garnishee. 4 C.J.S. 176, section 87; Adams v. Vanhoose,
[2] Another ground of the motions to dismiss the appeal is that plaintiff did not appeal from the discharge of the garnishee within two days from the order of discharge. The appeal was perfected twenty-nine days after such order. If plaintiff desired to appeal from the discharge of the garnishee she was required to then announce her purpose to appeal and to perfect such appeal within two days from such adjudication. Upon her failure so to do, such discharge became final. Sections
Since plaintiff now concedes she is entitled to no relief against the garnishee, it is perhaps of little consequence whether the discharge of the garnishee is affirmed or the appeal dismissed, insofar as plaintiff might seek to review such discharge. Either disposition would bring the same practical result to the parties. But since the two grounds of the motions to dismiss to which we have referred challenge our jurisdiction to review the discharge of the garnishee and we think they are good, we feel called upon to dismiss the appeal insofar as it might seek to review such discharge. See authorities last above; also, Estate of Kelley v. Kelley,
[3] Notwithstanding plaintiff's failure to appeal within two days from the adjudication below, we are inclined to entertain the appeal insofar as it challenges the holding that plaintiff has no judgment against defendant enforceable by execution. As stated, defendant's "motion to quash execution and for other relief" asks not only that the garnishee be discharged *660 but also that the court "decree that there is no judgment against the defendant in said cause for the payment of money." The court did so decree. This portion of the adjudication goes beyond the disposition of the garnishment proceedings.
The statutory requirement for appeal within two days from an order discharging a garnishment is designed to protect a garnishing creditor in whatever rights he may have under the garnishment but does not affect the right of appeal for other purposes. Munn v. Shannon,
[4] Although the amount in controversy in the garnishment proceeding proper was but $193.96 and the amount of past-due payments of alimony was but $270 when the execution issued, it cannot be said the amount in controversy between plaintiff anddefendant is less than the jurisdictional amount of $300. When the matter was submitted to the trial court four payments of $30 each had become due, in addition to the $270 called for by the execution. It is not contended defendant had paid any part of the $270 nor of the additional installments which matured after the execution issued.
Even if no payments except the $270 had become past due it would seem that the value of the unmatured installments would more than make up the difference between $270 and the jurisdictional amount of $300. We cannot say that the past-due payments, together with plaintiff's right to future installments, do not involve $300. The effect of the adjudication below is not limited to the $270 past due. If that adjudication is to stand, no future payments may be enforced by execution even after they mature. While future payments of alimony are subject to modification if circumstances render a change expedient (Code, 1946, section
There is some conflict of authority on the question of the amount in controversy where periodical payments are involved. 4 C.J.S. 169, 170, section 79. However, these authorities tend to support our conclusion: Thompson v. Thompson,
[6] Upon the merits, we think the provision of the divorce decree which fixes the rights of the parties in accordance with the stipulation of settlement and makes the stipulation part of the decree, together with paragraph 2 of the stipulation, constitutes a judgment or order requiring the payment of money which may be enforced by execution, as to installments that have become due.
Section
"Judgments or orders requiring the payment of money * * * are to be enforced by execution."
Code section 11567, in force when the divorce was granted, states: "Every final adjudication of the rights of the parties *662
in an action is a judgment * * *." This is substantially the provision of Rule 219, Rules of Civil Procedure, which supersedes section 11567. Practically the same definition of a judgment prevails generally. 23 Words and Phrases, Perm. Ed., 175-180; 30 Am. Jur. 821, section 2. An order is usually defined as a direction of a court or judge, entered in writing, other than a judgment or decree. 30 Words and Phrases, Perm. Ed., 116; Blunk v. Walker,
There can be no doubt that the parties had the right to enter into the stipulation, subject to the court's approval, and the court could approve and give effect to the stipulation if it appeared to be fair and reasonable. Schouler Divorce Manual (1944) 514, 515, section 353; 3 Nelson on Divorce and Annulment, Second Ed. (1945) 145, section 28.16; Carr v. Carr,
[7] The decree, of which the stipulation is a part, should be construed in accordance with its evident intention. 27 C.J.S. 1026, section 251c (2)(b). The use of particular forms of words is not essential to a judgment. The sufficiency of a writing claimed to be a judgment is to be tested by its substance rather than its form. If it corresponds with the definition of a judgment and appears to have been intended by the court as the determination of the rights of the parties, and shows in intelligible language the relief granted, the absence of language commonly deemed especially appropriate to formal judgments is not fatal. 1 Freeman on Judgments, Fifth Ed., 120-122, section 69. See, also, 30 Am. Jur. 827, 828, section 19. *663
To entitle plaintiff to a reversal it is necessary to hold only that she has a judgment or order requiring the payment of money. However, in view of the above considerations, it would seem plaintiff holds a judgment even though greater formality might well have been followed in the language used. A judgment is to be construed like other written instruments. The determinative factor is the intention of the court as gathered from all parts of the judgment. Effect must be given to that which is clearly implied as well as to that which is expressed. 30 Am. Jur. 834, section 31; Weir Russell Lbr. Co. v. Kempf,
It seems unlikely that the court did not intend to make a final determination of the rights of the parties. It is improbable that the court did not intend to award plaintiff the custody of the minor son, in accordance with the first paragraph of the stipulation. Nor is it probable the court intended the other terms of the stipulation, including the provision for alimony, to be less effective. "If possible, that construction will be adopted which will support the decree rather than one which will destroy it." 27 C.J.S. 1026, section 251c (2)(b).
[8] While, of course, a divorce cannot be obtained merely upon consent of the parties (Hopping v. Hopping,
It appears that about six months after this decree was entered plaintiff executed and there was filed a "Partial Release of Judgment," in which she released certain real estate presumably owned by defendant "from the lien of a certain judgment for $30 per month alimony obtained in Case No. *664 52,417, entitled Ruth H. Whittier, Plaintiff vs. Arnold V. Whittier, in the District Court of Linn County, Iowa, entered on November 17, 1939 * * *." We may infer this partial release was requested by defendant. In construing the decree we may properly consider the fact that the parties themselves apparently believed plaintiff held "a certain judgment for $30 per month alimony."
In support of our conclusion on the merits, see, in addition to the authorities heretofore cited, Walters v. Walters,
The appeal from so much of the adjudication below as discharges the garnishee is dismissed. Insofar as such adjudication holds that plaintiff has no judgment upon which execution can issue to enforce past-due payments, it is reversed.
Plaintiff should pay one third and defendant two thirds of the costs in the lower court and upon appeal. — Appeal dismissed in part; reversed in part.
All JUSTICES concur.
