Bitzer v. Washburn

• Decision Date: 21 October 1903
• Citation: 96 N.W. 978,121 Iowa 462
• Parties: WILLIAM L. BITZER v. LOUISA A. WASHBURN, Appellee
• Court: Iowa Supreme Court

96 N.W. 978

121 Iowa 462

WILLIAM L. BITZER v. LOUISA A. WASHBURN, Appellee

Supreme Court of Iowa, Des Moines

October 21, 1903

Appeal from Muscatine District Court.--HON. P. B. WOLFE, Judge.

ACCORDING to the petition a judgment had been entered against Louisa A Washburn in 1887. Execution issued thereon September 27 1898, and was levied on a house and lot in Muscatine owned by her. Sarah E. Lohr was served with notice of garnishment on the same day, and made answer to the officer serving the notice. Later the realty was advertised, and bid in at the sheriff's sale, occurring October 29th of the same year by the plaintiff, then owner of the judgment, for the full amount due thereon, with costs. Thereupon Mrs. Lorh's attorney, by directing the court's attention to the satisfaction of the judgment, procured her discharge as garnishee. She then paid Mrs. Washburn the remainder of the purchase price except $ 343, which was deposited with Jayne & Hoffman to save her harmless in a suit to be brought to set aside the sheriff's sale, to be paid to Mrs. Washburn less attorney's fees should the suit prove successful; otherwise for redemption from such sale. Suit was instituted as proposed, and the certificate of sale set aside. Thus both the realty and the purchase price eluded plaintiff in his efforts to enforce his judgment against Mrs. Washburn. The plaintiff seeks through this suit in equity to reach the fund in the hands of Jayne & Hoffman to satisfy the amount bid at the sheriff's sale, with interest and attorney fees expended; and, if this no longer remains in their custody, then judgment against all the defendants. He also asks judgment against defendants for all the expenses he has incurred in the litigation. The decree setting aside the sheriff's sale is not assailed, and the house and lot must be treated as having been sold before the levy of the execution, and, of course, the order discharging the garnishee is to be regarded as rightly entered unless the allegations of the petition, if accepted as true, are sufficient to establish its invalidity. The plaintiff, in addition to the recital of the above matter, avers: That Chas. A. Lloyd was agent for Mrs. Washburn in negotiating the sale, and William Hoffman was attorney for Mrs. Lohr, to see that she should obtain an unincumbered title, and subsequently became the attorney of Mrs. Washburn, by contract with Lloyd, to defeat the garnishment proceedings against Mrs. Lohr. That these parties had knowledge of the plaintiff's judgment, and conspired together to defeat its collection and to defraud the plaintiff. That Lloyd and Hoffman, in pursuance of said conspiracy, advised Mrs. Lohr to go into possession of the premises, which she claimed to have done prior to the levy of the execution. That she answered as garnishee, when served with notice, to the officer, under the direction of Hoffman, to the effect "that she had agreed to buy the said property, and had paid ten dollars on account of the purchase price, and that the deal or trade was to be consummated if the title should prove satisfactory," and was notified to appear and answer at the next term of court. That, "having so answered as to create the conviction that the title to the realty levied upon by plaintiff had not passed to her at the time of the levy," neither she nor either of the other defendants, although knowing of the levy upon and sale of the realty, made any objection thereto. That plaintiff, relying upon the truthfulness of the answer, and also the failure of any of defendants to make objection, bid in the property at the full amount of the judgment and all costs. That William Hoffman, while professedly acting for Mrs. Lohr, was really acting for Mrs. Washburn in procuring the discharge of the garnishee without notice to plaintiff. That the defendants, in testifying in the suit to set aside the sheriff's sale, concealed the payment of any money to Jayne & Hoffman in fraud of plaintiff's rights. That, after decree in said suit had been entered, plaintiff perfected his appeal to the Supreme Court, but when about to prepare his abstract said Lloyd entered into negotiations with plaintiff's attorneys for a settlement, and requested that no further expense be made in preparing an abstract until he could communicate with and receive an answer from Mrs. Washburn, who resided in California, and thereby induced plaintiff's attorneys to postpone filing said abstract beyond the time for filing the same, and then refused their proposition of settlement. That thereafter said Hoffman took advantage of said default, and, in pursuance of said conspiracy, filed a motion to dismiss the appeal, which was sustained. That, had Mrs. Lohr stated the facts as she now claims them in her answer as garnishee, or given notice thereof to plaintiff at any time before the sale, all the subsequent litigation would have been avoided, and plaintiff able to collect his claim. That said Hoffman would have so advised her but for his employment by Mrs. Washburn at the same time. "That claiming to the said district court, a reason for the discharge of the said Sarah E. Lohr as garnishee, that the execution had been satisfied by a sale of realty which she intended afterwards to and did contest as void, and in fact no sale, was a fraud upon this plaintiff and upon the court, and was all in pursuance of a conspiracy engineered by the said William Hoffman, and assented to and participated in by the said Sarah E. Lohr and Chas. A. Lloyd, first, to induce and compel a sale of the realty by suppressing and concealing the claims they ultimately intended to make concerning the title to the realty; and, second, to procure a release of a garnishment, which all of the defendants knew was valid if their claims were truthful as to the condition of the title to the realty when it was levied upon; and, finally, having procured the garnishment to be released, to conceal enough of the purchase money in the shape of a deposit to protect Mrs. Lohr from payment of the judgment in any event, and then for the first time to assert such claims to the real property as to have the sheriff's sale thereof held to be invalid." That there is no adequate remedy at law, and ordinary proceedings would enable Jayne & Hoffman to transfer the fund in their hands beyond the court's jurisdiction. The prayer was for the relief heretofore stated. A general demurrer was sustained, and, as plaintiff failed to plead over, the petition was dismissed. Plaintiff appeals.

Affirmed.

Richman & Richman for appellant.

Jayne & Hoffman for appellees.

OPINION

LADD, J.

The vice running through appellant's argument is the assumption that defendants owed plaintiff the duty of aiding him in the enforcement of his judgment. They were under no such obligation, but had the right to resist its collection in every proper and legitimate way. The mere allegation that the defendants conspired or confederated together is of no consequence, unless it farther appears that they so did to do an unlawful act, or a lawful act in an unlawful manner. McHenry v. Sneer, 56 Iowa 649, 10 N.W. 234; Kelly v. Ry., 93 Iowa 436, 61 N.W. 957. And to maintain a civil action for damages something in pursuance of the conspiracy must have been done, occasioning injury from which the damages have proximately resulted. 6 Am. & Eng Ency. of Law, 874. A conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. Beechley v. Mulville, 102 Iowa 611, 71 N.W. 428; De Wulf v. Dix, 110 Iowa 553, 81 N.W. 779. As tersely remarked by Judge Knowles in Philbrook v. Newman (C. C.) 85 F. 139, "It is not wrong for a man to conspire with others to do a legal and proper act." Now, the prevention of the enforcement of a judgment is no wrong, unless accomplished by illegal means. While there is a diversity of opinion as to...