Dolph v. Cross

• Decision Date: 14 December 1911
• Citation: 133 N.W. 669,153 Iowa 289
• Parties: FRANK E. DOLPH, Plaintiff, v. JAMES E. CROSS, Defendant, SHENANDOAH NATIONAL BANK, Garnishee and Appellees, R. E. ANDERSON, Intervener and Appellant
• Court: Iowa Supreme Court

133 N.W. 669

153 Iowa 289

FRANK E. DOLPH, Plaintiff, v. JAMES E. CROSS, Defendant, SHENANDOAH NATIONAL BANK, Garnishee and Appellees, R. E. ANDERSON, Intervener and Appellant

Supreme Court of Iowa, Des Moines

December 14, 1911

Appeal from Shenandoah Superior Court.--HON. GEORGE H. CASTLE Judge.

THIS is a garnishment proceeding under execution. The execution plaintiff sought to reach a fund in the bank to the credit of the defendant, and garnished the bank. The intervener appeared and claimed a part of the fund. The garnishee paid the money into court. The petition of intervention was struck from the files upon motion of the plaintiff and a judgment entered for plaintiff condemning the fund. The intervener appeals.

Reversed.

Jennings & Mattox, for appellant.

E. R Ferguson and C. R. Barnes, for appellee, Frank E. Dolph.

OPINION

EVANS, J.

The plaintiff was the holder of a judgment against the defendant entered in the superior court of Shenandoah. On July 5, 1910 he caused an execution to issue and to be served by garnishment of the Shenandoah National Bank. Return of the execution was made on September 9, 1910. The return stated that the execution was served "by garnishing said bank and taking answer to same in which they claim that they hold $ 132.52." The following answers of garnishee were attached to the return: "A. First. Are you in any manner indebted to the defendant in this suit, or do you owe money or property which is not yet due? If so, state particulars. Answer. $ 132.52. Second. Have you in your possession, or under your control, any property, rights, or credits of the defendant? If so, what is the value of the same, and state all particulars. Answer. No." On September 17th the garnishee bank filed an amendment to its answer as garnishee and paid the money into court. Such amendment contained the following particulars: "That before noon of the 5th day of July, 1910, the defendant, James E. Cross, above named, deposited in the said bank the sum of $ 132.52, and at the time of making said deposit stated to the officer or clerk of said bank to whom he handed said money to be deposited for him that he made the deposit for the purpose of meeting checks which he had already issued as against such deposit, and that the deposit was made to take care of said checks, and thereupon the said funds were so taken and received by said bank and placed to the credit of the said James E. Cross. That later, to wit, about the opening of the bank on July 6, 1910, the intervener, R. E. Anderson, presented his check for the sum of $ 40.73, dated July 5, 1910, and made by the defendant, James E. Cross, to the said intervener, R. E. Anderson, and the same would have been paid by this garnishee, but that, previous to the same being presented, it had been garnished on execution issued in the above-entitled cause of Dolph v. Cross, and by reason of such garnishment was unable to take up said check, but reports the same now to this court, that this court may determine whether the plaintiff or said intervener is entitled to the amount of said check." On July 22, 1910, the intervener filed a petition of intervention. He averred therein that on July 5, 1910, he sold to the defendant a tierce of lard, and received from him a check in payment therefor on the Shenandoah National Bank, and that afterwards the "defendant, James E. Cross, deposited in the Shenandoah National Bank funds to meet said check about noon on the said date of July 5, 1910, and, upon making said deposit, informed said bank that the funds so deposited were deposited to meet the payment of checks he had already drawn." He also averred that the deposit was made as a special deposit to meet the intervener's check, and another which defendant had issued, and that his right thereto was superior to that of garnishing plaintiff.

To the amended answer of the garnishee, the plaintiff pleaded that the garnishee was estopped by its original answer from pleading the matter in the amendment. The plaintiff also filed a motion to strike the petition of intervention on the following grounds: (1) That the said petition was not filed in said cause until after the trial thereof, and after judgment had been rendered. (2) That the same does not set up any proper or valid ground of intervention.

Plaintiff also filed a motion for judgment on the following grounds: "(1) That the answer of the garnishee and the amendment thereto state no defense or reason why this amount should not be paid to the said plaintiff. (2) That the answer of the said garnishee and the amendment thereto show on their face that the said garnishee is indebted to the defendant, James E. Cross, in the sum of $ 132.52. That the said debt is the property of the said James E. Cross, and the property of no other person, and that there is no reason why judgment should not be rendered against the garnishee in the said amount, and the same applied to satisfy plaintiff's judgment pro tanto against the said James E. Cross." The trial court sustained the motion to strike and the motion for judgment, and entered judgment for plaintiff as heretofore indicated. The case therefore turns wholly upon the propriety of the procedure, and upon the sufficiency of the facts pleaded to entitle the intervener to relief.

I. The first question presented for our consideration is one of procedure. Was the intervener entitled to intervene in the garnishment proceeding to set up therein his claim for the fund sought to be reached by garnishment? It is argued by appellee that no such right exists where the garnishment is under execution. It is also argued that there can be no right of intervention after a judgment has been entered. This position can not be sustained. The intervention had nothing to do with the merits of the main case. It had to do with the garnishment proceeding only. This proceeding is in its nature auxiliary to the execution. Sections 3935 to 3953, which...