Bell v. Courteen Seed Co. of Milwaukee, Wis.
| Decision Date | 05 February 1924 |
| Docket Number | 35622 |
| Parties | WILLIAM BELL, Appellant, v. COURTEEN SEED COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Lucas District Court.--SENECA CORNELL, Judge.
SUMMARY proceeding for the release of attached property.
Affirmed.
J. W Kridelbaugh and O. M. Slaymaker, for appellant.
W. D Eaton and Stuart & Stuart, for appellees.
STEVENS J. ARTHUR, C. J., DE GRAFF and VERMILION, JJ., concur.
This is a summary proceeding in an action at law for the release of attached property. The following matters of record are material: An action was commenced in the district court of Lucas County on August 23, 1922, by appellant, against the Courteen Seed Company, a corporation of Milwaukee, Wisconsin, to recover a balance alleged to be due him upon shipments of seed to it at that place. A writ of attachment was sued out and levied by garnishing the Chicago, Burlington & Quincy Railroad Company, appellee herein, as a supposed debtor of the defendant seed company. In addition to garnishing the railroad company, a quantity of timothy seed, in sacks, was seized and removed by the sheriff from a box car on the tracks and in the custody of appellee railroad at Chariton, Iowa. The timothy seed was consigned by Eddy Grain & Produce Company of Osceola, Iowa, to itself as consignee, with a notation on the waybill to "notify the defendant Courteen Seed Company."
On August 28, 1922, the garnishee filed its answer in the office of the clerk of the district court of Lucas County, together with a motion, as a part thereof, for the discharge of the attached property, upon the ground that the shipment was interstate, and under a negotiable bill of lading, and therefore exempt from attachment. The motion of the garnishee further alleged that the bill of lading had not been surrendered to it, or impounded by the court, or its negotiation enjoined.
Plaintiff filed a reply, controverting the answer of the garnishee,--which answer merely stated that it did not have in its possession or under its control any rights, property, or credits belonging to the defendant,--and denying that the shipment was under a negotiable bill of lading, and averring that a sight draft, drawn by the shipper on the Courteen Seed Company for $ 1,650, and attached to the bill of lading, was paid by the defendant, to whom the draft and bill of lading were surrendered. Both the motion of the garnishee to release the attached property and the reply of appellant controverting the answer of the garnishee were verified. As neither the motion nor the reply is in the form of an affidavit, we assume that the verification was such as is usually attached to verified pleadings.
In addition to the recitals of the verified motion to release the attached property, O. P. Troutwein, the agent of appellee at Chariton, was introduced and examined as a witness by appellee, in regard to the bill of lading. Much of his testimony was incompetent and hearsay. The shipment of the timothy seed originated at Truro. The witness never saw the bill of lading, and, of course, could not testify, from personal knowledge, whether it was a negotiable or nonnegotiable instrument. Some of his testimony is competent, and, so far as it is, it tends to support the allegations of the motion. He identified an exhibit which purported to be the original waybill, which was offered in evidence. The objection to the offer of this exhibit was general, and did not raise any question as to the sufficiency of its identification. The effect of Troutwein's testimony was that the form of the waybill was that used when a negotiable bill of lading is issued. He admitted on cross-examination that he had no personal knowledge as to the negotiable character of the bill of lading, further than that the consignor was also named as the consignee, and that bills of lading in that form were usually negotiable by indorsement. The agent of appellee at Truro, who issued the waybill and bill of lading, was not called to testify.
That the timothy seed was in transit as an interstate shipment is not questioned. A negotiable bill of lading is defined by the act of Congress of August 29, 1916, as follows:
Section 3, Chapter 415, Act of August 29, 1916.
To the same effect, see Section 3138-b4, 1913 Supplement to the Code.
Goods consigned by the owner, to whom an order bill of lading is issued, are not subject to attachment by garnishment or otherwise, while in the possession of the carrier. Section 23, 39 Statutes at Large 542, is as follows:
To the same effect, see Section 3138-b23, 1913 Supplement to the Code.
It follows, of necessity, from the foregoing provisions of both the Federal and state statutes, that, if the attached property was consigned to appellee in this state for transportation to a point outside thereof, and a negotiable bill of lading was issued therefor, it was not, while in the possession of appellee, subject to attachment, either by garnishment or levy thereon. The...
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