Diemer v. Guernsey

• Decision Date: 26 October 1900
• Citation: 83 N.W. 1047,112 Iowa 393
• Parties: JOHN DIEMER v. GUERNSEY & JOHNSON AND BLANCHE G. JOHNSON, Appellants, ED. S. JOSELYN, G. V. GOODELL, Assignee of ED. S. JOSELYN for the benefit of Creditors, OLNEY & MCDAID AND SIMMONS HARDWARE COMPANY, Defendants, COHEN & MEISNER AND TWELVE OTHERS, GENERAL CREDITORS, Interveners
• Court: Iowa Supreme Court

83 N.W. 1047

112 Iowa 393

JOHN DIEMER v. GUERNSEY & JOHNSON AND BLANCHE G. JOHNSON, Appellants, ED. S. JOSELYN, G. V. GOODELL, Assignee of ED. S. JOSELYN for the benefit of Creditors, OLNEY & MCDAID AND SIMMONS HARDWARE COMPANY, Defendants, COHEN & MEISNER AND TWELVE OTHERS, GENERAL CREDITORS, Interveners

Supreme Court of Iowa, Des Moines

October 26, 1900

Appeal from Tama District Court.--HON. G. W. BURNHAM, Judge.

PLAINTIFF brings this action in equity for judgment, and to foreclose a chattel mortgage executed to him July 6, 1896, by Ed. S Joselyn, on a certain stock of merchandise and store fixtures to secure the payment of six promissory notes made at different dates between August 4, 1893, and July 6, 1896 inclusive, aggregating $ 2,000, and a second mortgage executed July 23, 1896, on the same property, to secure the same debt, made to correct errors supposed to exist in the first. G. V. Goodell, assignee of Ed. S. Joselyn for the benefit of creditors, Guernsey & Johnson and Blanche G Johnson, Olney & McDaid, and Simmons Hardware Company creditors of Ed. S. Joselyn, are made defendants, and as to them plaintiff claims priority. Cohen & Meisner and 12 other general creditors of Ed. S. Joselyn intervened, but as no relief was granted to them, and they do not appeal, their demands require no further notice. Guernsey & Johnson filed answer and cross bill asking foreclosure of the chattel mortgage executed to them by Ed. S. Joselyn, August 31, 1893, to secure the payment of his four promissory notes dated August 7, 1893, aggregating $ 1,868.89, and claiming that said mortgage is a lien prior and superior to the claims and liens of the other defendants. Olney & McDaid filed their answer and cross bill, asking to foreclose a chattel mortgage of Ed. S. Joselyn made to them July 23, 1896, on the same property, to secure his promissory note in the sum of $ 780. They claim that their mortgage is superior to that of Guernsey & Johnson, and of equal force with the mortgage of the Simmons Hardware Company, and say that they have not information sufficient to form a belief as to whether or not plaintiff's mortgage is superior to their mortgage. The Simmons Hardware Company filed similar answer and cross bill to foreclose their chattle mortgage on the same property given by Joselyn to secure his note for $ 256.49. Issues were joined upon these cross bills, plaintiff asserting his mortgage to be superior; Olney & McDaid and the Simmons Hardware Company claiming their liens to be superior to that of Guernsey & Johnson and to the assignment to Goodell. Guernsey & Johnson claim their mortgage to be paramount to the claims and liens of all the other defendants. The assignee and interveners attack the Guernsey & Johnson mortgage, and claim their interests to be superior in the property in controversy to said mortgage. Decree was entered foreclosing the mortgages of the plaintiff and of defendants Olney & McDaid and the Simmons Hardware Company, and dismissing the cross bill of Guernsey & Johnson asking foreclosure, but allowing their claim as a general creditor under the assignment. Guernsey & Johnson appeal.

Reversed.

J. A. Merritt for appellants.

Struble & Steiger for appellees assignee and interveners.

Willett & Huber for appellees Diemer, Joselyn, Goodell, Olney & McDaid, and Simmons Hardware Co.

GIVEN J. GRANGER, C. J., not sitting.

OPINION

GIVEN, J.

I.

There is no question but that Ed S. Joselyn is indebted to each of these creditors in the amounts claimed, except as to the last of the six notes executed to the plaintiff. This note was executed July 6, 1896, for $ 1,000, and we are satisfied that it represents a bona fide indebtedness. The several claims being thus established, we now inquire as to the rights of these mortgagees under their respective mortgages and, first, as to whether the appellants Guernsey & Johnson are entitled to a lien under their mortgage as against the other mortgages. In August, 1893, Ed. S. Joselyn purchased a stock of merchandise from Guernsey & Johnson, then owned and kept at Dayton, Webster county, Iowa. In part payment, Joselyn, on the...