Bever v. Swecker

• Decision Date: 10 June 1908
• Parties: BEVER v. SWECKER ET AL. SWECKER v. SWECKER.
• Court: Iowa Supreme Court

138 Iowa 721

116 N.W. 704

BEVER

v.SWECKER ET AL.

SWECKER

v.SWECKER.

Supreme Court of Iowa.

June 10, 1908.

Appeal from District Court, Poweshiek County; W. G. Clements, Judge.

Garnishment proceedings to subject certain property to the payment of a judgment held by plaintiff against John Swecker. Chas. Swecker, executor of the estate of A. Swecker, was garnished under execution, and he answered that he held in his possession and under his control property of John Swecker to the value of $1,800. The defendant and the garnishee moved to discharge the garnishment. This motion was overruled, and judgment was rendered against the garnishee. The defendant and the garnishee appeal. Affirmed.Tom H. Milner, for appellants.

Talbott & Talbott, for appellee.

DEEMER, J.

November 15, 1905, plaintiff obtained judgment for something like $425 against defendant, John Swecker. This judgment was for some cattle which it was claimed that defendant took from plaintiff without his knowledge and consent, and appropriated to his own use. On December 5, 1905, defendant was declared a bankrupt by the United States District Court, and on January 29, 1906, was discharged as such bankrupt. A. Swecker died testate in July, 1906, and the money and property now held by the garnishee came to defendant through the said A. Swecker. In the motion to discharge the garnishee, the garnishee and the defendant pleaded the discharge in bankruptcy as the ground for such motion.

The question we have for decision upon this appeal is this: Did the discharge in bankruptcy operate as a satisfaction of plaintiff's judgment? Among other things the bankruptcy law provides that a discharge releases all of a bankrupt's provable debts except (1) taxes; (2) liabilities for obtaining property by false pretenses or false representations, or for unlawful and malicious injuries to the person or property of another, or for criminal conversation. See Bankr. Act July 1, 1898, c. 541, § 17 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 800 (U. S. Comp. St. Supp. 1907, p. 1033). Under the original act judgments for willful and malicious injuries to the person or property of another were not released. Courts, of course, will look behind the judgment to discover and determine the nature of the liability. Was the judgment in this case for the unlawful and malicious injury to the property of the plaintiff? This is the pivotal question in the case. That the act of defendant in taking the cattle was unlawful there can be no question; but was it “malicious” as that term is used in the bankruptcy act? The only showing in addition to that heretofore stated regarding the nature of defendant's liability is that plaintiff commenced suit to recover the value of the cattle which resulted in the judgment upon which the execution issued. As all forms of action are abolished in this state, it is often difficult to tell whether the remedy sought is trespass, case, trover, or detinue. But there still remain certain landmarks to be resorted to in order to determine the nature of the action. The action of trover proceeded upon the fiction that the defendant found the property and thereafter converted it to his own use, and generally was brought where defendant came into possession of the property rightfully. A demand was necessary therefor before suit was brought in order that the action would lie. The action of trespass involved the idea of the violation of a possessory right, as well as forceful damage. Unless the right of possession was somehow violated or invaded, the action of trespass would not lie. 3 Street's Foundations of Legal Liability, pp. 234-236. And suit could only be maintained against the immediate wrongdoer. The action of case would lie at common law for what was known as secondary trespass; that is to say, in cases where the act itself directly produced the wrong, the action was trespass, but where the act itself did not directly produce the injury, but the damage resulted as a consequence and not directly from the trespass, the action was trespass on the case. 3 Street on Foundations of Legal Liability, pp. 252, 253. If the act complained of was simply a negligent one, trespass would not lie, but case would. As stated by Street, if a person willfully causes a...