Burnett v. Gustafson

• Decision Date: 16 June 1880
• Citation: 6 N.W. 132,54 Iowa 86
• Parties: BURNETT v. GUSTAFSON AND ANOTHER.
• Court: Iowa Supreme Court

54 Iowa 86

6 N.W. 132

BURNETT

v.GUSTAFSON AND ANOTHER.

Supreme Court of Iowa.

Filed June 16, 1880.

Appeal from Webster circuit court.

The plaintiff brought an action against John E. Gustafson, aided by attachment, and the First National Bank of Boone was garnished as a supposed debtor of John E. Gustafson. The statutory questions were propounded to the garnishee through its cashier, who answered all of said questions in the negative. The plaintiff recovered judgment against Gustafson for $625.21, with 10 per cent. interest, and an order was made giving the plaintiff leave to file within 10 days a bill in equity against the said bank. Within the time allowed the plaintiff filed a petition in equity, alleging in substance that of the proceeds of a certain mortgage on cattle to plaintiff, to secure the debt sued upon, the defendant bank received from Gustafson $1,000, and applied it to the satisfaction of an antecedent indebtedness due the bank from Gustafson. The petition prays that the bank may be declared a trustee of said fund, and required to account for the same. The court dismissed the petition. The plaintiff appeals. The material facts are stated in the opinion.O'Connell & Springer, for appellant.

John F. Duncombe, for appellees.

DAY, J.

1. On the thirteenth day of May, 1876, John E. Gustafson, to secure the debt sued upon, executed to the plaintiff a chattel mortgage upon property described as follows: “Sixty head of cattle, 45 three-year-old and 15 two-year-old steers.” This mortgage was recorded in Webster county on the six-teenth day of May, 1876. About the same time the defendant Gustafson was indebted to the bank in the sum of $2,200, a portion of which debt had been renewed from time to time. At the date of the last renewal of a note of $1,000 Gustafson promised that he would pay it when he sold his cattle. On the tenth day of January, 1877, Gustafson sold in Chicago the three-year-olds described in the mortgage, and received therefor a little over $1,000. The defendant Gustafson deposited this sum in a bank in Chicago, to the credit of the First National Bank of Boone. On the eleventh day of January the defendant bank received notice of this deposit, and placed it to the credit of Gustafson in the bank. On the twenty-ninth of January, when a note of $1,000 matured, Gustafson came to the bank and requested a further renewal. He was then reminded of his promise at the time the former renewal was made. The money was then,...