Federal Surety Co. v. Des Moines Morris Plan Co.

• Decision Date: 13 December 1929
• Docket Number: 39850
• Citation: 228 N.W. 293,209 Iowa 339
• Parties: FEDERAL SURETY COMPANY, Appellee, v. DES MOINES MORRIS PLAN COMPANY, Appellant, et al
• Court: Iowa Supreme Court

228 N.W. 293

209 Iowa 339

FEDERAL SURETY COMPANY, Appellee, v. DES MOINES MORRIS PLAN COMPANY, Appellant, et al

No. 39850

Supreme Court of Iowa, Des Moines

December 13, 1929

Appeal from Polk District Court.--W. G. BONNER, Judge.

An action to recover certain funds from the appellant, the Des Moines Morris Plan Company. To the petition of plaintiff, as amended, motions were filed, which were overruled, and the Des Moines Morris Plan Company appeals.

Affirmed.

Allen Lynch and Stipp, Perry, Bannister & Starzinger, for Des Moines Morris Plan Company, appellant.

Jordan & Jordan, for Federal Surety Company, appellee.

Harry L. Tschantz, for Pewick Construction Company, appellee.

ALBERT C. J. EVANS, FAVILLE, DE GRAFF, and KINDIG, JJ., concur.

OPINION

ALBERT, C. J.

A summary of the facts as recited in the petition and the various amendments thereto is substantially as follows: On September 29, 1924, the Pewick Construction Company entered into a contract with Marshall County to gravel certain roads. About the same time, the Federal Surety Company executed and delivered a bond to said county, guaranteeing the performance of the work and payment of just claims for labor, material etc. On April 28, 1925, the Construction Company made a written assignment to the Des Moines Morris Plan Company of "all moneys or credits or both which may be due us for work done under written contract, a copy of which is attached hereto."

It is alleged that these funds were to be paid in trust to the Des Moines Morris Plan Company for the payment of all persons who had just claims for work or material, and also, after these had been paid, for the benefit of the Des Moines Morris Plan Company on account of certain indebtedness owed by the Pewick Construction Company to said Morris Plan Company. The Pewick Construction Company completed its work, and the same was accepted by Marshall County. Certain funds were paid by the county to the Des Moines Morris Plan Company, and it is alleged that said company breached its trust, in that it applied said funds to the payment of its own debts, and left outstanding claims for labor and material unpaid to the amount of $ 993.27, which the plaintiff was compelled to pay, under the terms of its bond.

It is also alleged that the plaintiff had an assignment made, at the time the bond was executed, which was contained in the application for the bond, which, so far as material, reads as follows:

"The said principal [Pewick Construction Company] does hereby assign, transfer and convey to said company all the deferred payments and retained percentages, and any and all money and properties that may be due and payable to said principal at the time of such breach or default, or that may thereafter become due and payable to said principal on account of said contract, or on account of extra work or materials supplied in connection therewith."

This assignment bore date October 21, 1924. The deferred payments and retained percentages were accounted for, and are not involved in this case.

It is alleged that the Des Moines Morris Plan Company had actual and constructive notice of the above assignment to the Federal Surety Company.

The Des Moines Morris Plan Company filed, in effect, three motions attacking these pleadings. The first motion was to dismiss on the ground of misjoinder of causes; the second, a motion to strike all claims and causes of action stated against the Pewick Construction Company on the ground of misjoinder of parties; and the third, a motion to transfer the cause to the law docket. These three motions constituted three divisions of a motion to dismiss, but, in effect, operated as three separate motions. They were all overruled, and appeal is taken therefrom.

It is the claim of appellant that it has a right to have reviewed the ruling of the court on each of these motions.

The first motion is to dismiss on the ground of misjoinder of causes, and the Des Moines Morris Plan Company asked for an order dismissing the petition of the plaintiff as to it. If appellant's contention in this respect be assumed to be true, how is such question to be reached? This whole subject is taken care of in Chapter 485, Code, 1927 the remedy there provided being that the defendant shall file a motion to strike from the petition any cause or causes of action improperly joined with others. Section 10963. It is then provided that, if such a motion is sustained, the plaintiff may, by motion, be allowed to file several petitions, etc. It is...