Faivre v. Gillan

• Decision Date: 05 February 1892
• Citation: 51 N.W. 46,84 Iowa 573
• Parties: FAIVRE ET AL. v. GILLAN ET AL.
• Court: Iowa Supreme Court

84 Iowa 573

51 N.W. 46

FAIVRE ET AL.

v.GILLAN ET AL.

Supreme Court of Iowa.

Feb. 5, 1892.

Appeal from district court, Marion county; J. H. HENDERSON, Judge.

Defendants' demurrer to plaintiffs' petition and amendments being sustained, the plaintiffs elected to stand upon their petition, whereupon judgment was entered against them for costs, from which they appeal.L. Kinkead, for appellants.

Hayes Bros. and Theo. West, for appellees.

GIVEN, J.

1. The petition and amendments thereto show that M. J. Faivre, D. T. Fall, and M. J. Stilwell, as plaintiffs, bring this action against Emeline Gillan, Peter Gillan, and Christina Pearson as defendants. They allege that Christina Pearson is indebted to the plaintiff, Faivre, on account set out, for visits and medicines, and for time spent in preparing papers and moving goods, $18; to the plaintiff M. J. Stilwell, on account set out, for merchandise, boarding, work, etc., $398.67; and to plaintiff D. T. Fall, on account set out, for boarding, work, etc., $125.45. It is alleged, by way of amendment, that plaintiffs' cause of action is based upon the several accounts or individual claims against the said Christina Pearson, and which were assigned in parol, after the commencement of the action, to M. J. Stilwell, “with the understanding and agreement that said cause should proceed in the name of the parties as shown in the title of said action at the commencement thereof. That the interests assigned to the said Stilwell by her coplaintiffs were the accounts in suit and whatever other rights of action or cross-demandsthey may have against the defendants or either of them. That as said creditors of defendant Pearson they are still interested in this suit to the extent that their claims on their respective accounts against her may not fail, and that their interests therein may be secured to the said M. J. Stilwell.” The relief asked as to these accounts is “that an accounting be had of the indebtedness of the said Christina to these plaintiffs respectively, and that the several amounts due them be found.” Plaintiffs also alleged that Christina Pearson is of unsound mind, and they pray “that a jury be first impaneled for the purpose of inquiring into the unsoundness of mind of the said Christina, and to inform the court by verdict as to that fact, and, if found of unsound mind, then that a guardian be appointed for her.” They further allege that on the 4th day of December, 1889, the said Christina Pearson, being then of unsound mind, did, at the solicitation of the other defendants, and without any consideration therefor, execute to Emeline Gillan a deed for certain land described, being all the property she owned; that plaintiffs' claims were then due and unpaid; and that Emeline Gillan accepted said deed and property knowing that it was all said Christina had with which to pay said debts. The deed, as set out, shows that it was in consideration of love and affection and future support. The relief asked as to the deed is that it be set aside; that the defendants be ordered to turn over to the guardian all property had of the said Christina; and that the guardian be ordered to pay plaintiffs' accounts out of the personal effects of the said Christina, and, if that is insufficient, that he be ordered to sell as much of the real estate as may be necessary. Nothing whatever is alleged as to Peter Gillan except that the deed was made and personal property delivered by Christina to Emeline “at the solicitation of the other defendants.” The grounds of demurrer are that there is a misjoinder of causes of action and of parties; that, the plaintiffs having no judgment upon which execution could issue, there is nothing upon which an action to set aside the deed can be based, and that the plaintiffs are not entitled, under the showing made, to the relief demanded, or to any relief.

2. We first inquire whether there is a misjoinder of causes of action. It will be seen by the foregoing statement that the petition sets out what, standing alone, would be three separate actions at law on the several accounts against Christina Pearson, unless the alleged parol assignment is such as to authorize M. J. Stilwell to maintain the action on the three accounts. In that event, we...