Burnett v. Gustafson

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

6 N.W. 132

54 Iowa 86

BURNETT v. GUSTAFSON ET AL

Supreme Court of Iowa, Des Moines

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 ten per cent interest, and an order was made giving the plaintiff leave to file, within ten 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 one thousand dollars 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.

AFFIRMED.

O'Connell & Springer, for the appellant.

John F Duncombe, for appellees.

OPINION

DAY, J.

I.

On the 13th 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; forty-five three years old, and fifteen two years old, steers."

This mortgage was recorded in Webster county on the 16th 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 10th day of January, 1877, Gustafson sold, in Chicago, thirty-seven of the three year olds described in the mortgage, and received therefor a little over one thousand dollars. The defendant Gustafson deposited this sum in a bank in Chicago to the credit of the First National Bank of Boone. On the 11th day of January the defendant bank received notice of this deposit, and placed it to the credit of Gustafson in the bank. On the 29th of January, when a note of one thousand dollars matured, Gustafson came to the bank and requested a further renewal. He was then reminded of his promise at the time the former...