Dunham v. Bentley

• Decision Date: 11 October 1897
• Citation: 103 Iowa 136,72 N.W. 437
• Parties: DUNHAM ET AL. v. BENTLEY (STAMAN, GARNISHEE; BENTLEY ET AL., INTERVENERS).
• Court: Iowa Supreme Court

103 Iowa 136

72 N.W. 437

DUNHAM ET AL.

v.BENTLEY (STAMAN, GARNISHEE; BENTLEY ET AL., INTERVENERS).

Supreme Court of Iowa.

Oct. 11, 1897.

Appeal from district court, Jackson county; William F. Brannon, Judge.

In 1886, L. B. Dunham obtained a judgment against Albert Bentley for $967.42. The judgment plaintiff died in 1892, and on August 19, 1893, execution was issued on this judgment in the name of L. H. Dunham, as administrator of L. B. Dunham, deceased, on which appeared, in the handwriting of the clerk, the indorsement: “L. H. Dunham appointed administrator of the estate of L. B. Dunham, and his commission as such is still in force.” J. L. Staman, as administrator of David Bentley, deceased, and others, were duly garnished, and the execution returned by the sheriff October 4, 1893. A new execution in the name of L. B. Dunham, without any indorsement, was issued April 23, 1894, and Staman again garnished December 8th following. Staman answered that as administrator of the estate of David Bentley he then held the sum of $825 as Albert Bentley's share of his father's estate, and that this was claimed by Philoma Bentley and Murray & Farr. Thereafter such claimants filed a petition of intervention, setting up an assignment of Albert Bentley's share in his father's estate, made January 28, 1893, and ratified shortly after the death of David B. Bentley. L. H. Dunham, J. L. Sloan, and Mary B. Dunham, as heirs and persons entitled to the estate of L. B. Dunham, deceased, attack the assignment as being fraudulent and without consideration. Trial to court, judgment for interveners, and L. H. Dunham, J. L. Sloan, and Mary B. Dunham appeal. Reversed.Levi Keck and D. A. Wynkoop, for appellants.

Hayes & Schuyler, Wm. Graham, and Murray & Farr, for appellees.

LADD, J.

The judgment plaintiff died before the second execution was issued. No indorsement whatever was made by the clerk, as required by section 3130 of the Code of 1873, and the defendant has entered no complaint of this omission, though, under section 3134, he might have enjoined or moved to quash the execution. The record, then, raises the question whether an execution without indorsement, issued after the death of the judgment plaintiff, is void, or only voidable. A judgment, at common law, became dormant in a year and a day, but it might be revived by resort to the scire facias. An execution issued after the lapse of this time, and without so doing, was only voidable. If the defendant chose to interpose no objection to its regularity, others could not do so for him, and he was not permitted to do so collaterally. Freem. Ex'ns, § 29. Where the time within which execution may be issued has been extended by statute, the same rule is adopted. Mariner v. Coon, 16 Wis. 468; Bank v. Spencer, 18 N. Y. 154. So, too, where the time within which an execution may issue after a previous one is limited, an execution issued thereafter without revivor has been adjudged voidable only. Gardner v. Railway Co., 102 Ala. 635, 15 South. 271;Eddy v. Coldwell, 23 Or. 163, 31 Pac. 475. In analogy with the principle involved in these cases some courts have held an execution issued after the judgment creditor's death, and without revivor, not void. Day v. Sharp, 34 Am. Dec. 509;Hughes v. Wilkinson, 37 Miss. 482;Darlington v. Speakman, 9 Watts & S. 182;Jenness v. Lapeer, 42 Mich. 469, 4 N. W. 220. With better reason such execution has been adjudged void on two grounds: (1) By the death of plaintiff the party to whom authority was given to enforce the judgment is withdrawn; (2) a new party, benefited and concerned in the judgment, is introduced in the record. Brown v. Parker, 15 Ill. 307;Meyer v. Mintonye, 106 Ill. 414;Bellinger v. Ford, 21 Barb. 311; Morgan v. Taylor, 38 N. J. Law, 317; Stewart v. Nuckols, 50 Am. Dec. 127. This last case overrules Day v. Sharp, supra. The grounds for holding such an execution void seem unassailable. If the sole plaintiff is dead, the right of another to stand in his stead ought to be first determined, and the record show in whose behalf the benefits accruing under the judgment are taken. This insures the proper application of the amount collected to the satisfaction of the debt. It avoids an unexplained variance in the record. That letters of administration have not issued is presumed, and the authority given plaintiff to resort to the legal processes of compulsory payment ought not to be exercised by another until his right to do so be fully ascertained. Such a rule serves a double purpose: it guards the rights of the judgment defendant, and protects the property of the deceased plaintiff. The provisions of the statute recognize, rather than obviate, the necessity of some kind of a revivor. Upon the filing of an affidavit with the clerk of court, setting forth the death of the plaintiff, the names of his heirs or representatives, and, if the latter, accompanied by a certificate of qualification, he is required to indorse on the execution the fact of such death, and the names of those entitled to the judgment; and when this is done the sheriff proceeds as though the parties whose names are so indorsed were the only plaintiffs. Sections 3131-3133, Code 1873. If the personal representatives or heirs are not properly stated in the indorsement, the execution may be quashed; and, if not entitled to the judgment, its enforcement may be enjoined. Section 3134. A remedy is thus provided where there is a defective indorsement; none, in event of no indorsement. Nor, in such a case, was any necessary, as the execution, being void, would be no protection in the hands of the officer, and a levy thereunder amount to no more than a trespass. This view is in harmony with the conclusion arrived at in Meek v. Bunker, 33 Iowa, 169, where it is said of such an execution that it “could not have vitality to sustain a levy,” and that, “being invalid, the property levied upon under it could not be held.” See White v. Secor, 58 Iowa, 533, 12 N. W. 586. It follows that the execution was void, and the garnishee not held thereunder.

2. The issuance of the second execution, as it was void, did not amount to an abandonment of the first one. West v. St. John, 63 Iowa, 287, 19 N. W. 238;Friyer v. McNaughton (Mich.) 67 N. W. 978. Nor did the return of the first execution in any way affect the garnishment proceedings. Section 3052, Code 1873. The proceeds thereof may be readily appropriated, under the order of the court, to the satisfaction of the judgment, without the use of the original execution. No question is made as to the sufficiency of the indorsement on the first execution, and any property held by Staman, as administrator of David Bentley, deceased, belonging to the defendant Albert Bentley, must be accounted for thereunder.

3. The assignment by the defendant of his prospective share in his father's estate to Philoma Bentley and Murray & Farr prior to his father's death was fully...