Eckhardt v. Hess

• Decision Date: 15 December 1925
• Docket Number: 36758
• Citation: 206 N.W. 291,200 Iowa 1308
• Parties: JOHN F. ECKHARDT et al., Appellants, v. FRED HESS et al., Appellees
• Court: Iowa Supreme Court

206 N.W. 291

200 Iowa 1308

JOHN F. ECKHARDT et al., Appellants, v. FRED HESS et al., Appellees

No. 36758

Supreme Court of Iowa, Des Moines

December 15, 1925

Appeal from Iowa District Court.--RALPH OTTO, Judge.

REPLEVIN to recover by mortgagors from the mortgagee and the sheriff for exempt property taken under foreclosure proceedings. One of the divisions of the reply was stricken out, and the plaintiffs appeal.

Affirmed.

Baldwin & Fairchild, for appellants.

Wilson & Evans, for appellees.

MORLING J. FAVILLE, C. J., and EVANS and ALBERT, JJ., concur.

OPINION

MORLING, J.

Plaintiffs gave to defendant bank a chattel mortgage covering exempt and nonexempt property. The husband owner afterwards went into bankruptcy, scheduling all the mortgaged property, exempt and nonexempt. The defendant bank filed a claim for its entire debt, as a partially secured creditor, setting out the chattel mortgage, and stating that the mortgage covered both exempt and nonexempt property, and claiming, in addition to its lien upon the exempt property, the establishment of a first lien upon the nonexempt property. Afterwards, the exempt property was set off to the bankrupt. Later, the nonexempt property was sold, free of liens, and the proceeds amounting to a small dividend on the claim, were paid to the bank. The bankrupt filed in the bankruptcy court objections to the jurisdiction of the referee to make any finding against his right to the exempt property, because it had been finally set off to him and the exempt property had passed out of the jurisdiction of the court. The bankrupt offered to withdraw his objections on the condition that the referee make an entry that the withdrawal be without prejudice to his rights to interpose the same objections to the claim against the exempt property at any time in any court. Later, the bankrupt was discharged from all provable debts other than those excepted from the operation of a discharge in bankruptcy. In his reply, plaintiff sets out these facts, and alleges that he filed with the referee objections to the allowance of the claim, and objected to the lien on the property for fraud; and that the claim was submitted to the bankruptcy court, and no objections were made to setting off the exempt property, and no petition to the bankruptcy court to retain jurisdiction of it was filed, but the exempt property, with the consent of the bank, was allowed to pass out of the...