First Nat. Bank of Sutherland v. Clements

• Decision Date: 01 February 1893
• Citation: 87 Iowa 542,54 N.W. 197
• Parties: FIRST NAT. BANK OF SUTHERLAND v. CLEMENTS.
• Court: Iowa Supreme Court

87 Iowa 542

54 N.W. 197

FIRST NAT. BANK OF SUTHERLAND

v.CLEMENTS.

Supreme Court of Iowa.

Feb. 1, 1893.

Appeal from district court, O'Brien county; Scott M. Ladd, Judge.

Action to recover damages alleged to have been caused by the neglect of defendant, as county recorder, to index, within due time, a chattel mortgage filed in his office for record. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.H. H. Crow and E. C. Herrick, for appellant.

W. D. Boies, for appellee.

ROBINSON, C. J.

On the 11th day of February, 1889, E. H. Farnsworth, a merchant engaged in business at Sutherland, executed on his stock of merchandise a chattel mortgage to plaintiff to secure an indebtedness of $1,075. The mortgage was at once sent across the country to the defendant, at his office in Pringhar, to be recorded. It was filed in his office at 45 minutes after 3 o'clock in the afternoon, but was not indexed until about 8 o'clock the next morning. After the mortgage was filed, but before it was indexed, two actions, aided by attachment, were commenced against Farnsworth, and the writs were levied upon the mortgaged property. The first writ, issued at the suit of Sperry, Watt & Garver, was levied at 10 o'clock in the evening of February 11th, and the other, issued in favor of Rider, Wallace & Co., was levied at 30 minutes after 6 o'clock in the morning of February 12th. A judgment was obtained in each suit, and the attached property was exhausted to satisfy them. The plaintiff claims that it was the duty of defendant, as recorder, to index the mortgage at the time it was filed, and that in consequence of his failure to do so the mortgage lien was lost; that Farnsworth is insolvent; and that, in consequence of the failure of defendant to perform his duty, plaintiff has sustained damage to the amount of $456.13, besides interest and certain costs. Of the several defenses pleaded by defendant, but two are involved in this appeal. The first of them is that the mortgage was fraudulent; and the second is that on the day it was filed for record the defendant was required to perform an unusual amount of official work; that he worked faithfully and continuously until after the usual time for stopping work, but was unable to index the mortgage in controversy until the morning of the next day; and that he performed his duty fully. The jury returned answers to several special interrogatories, which, if well founded, show that the mortgage was fraudulent, and that defendant indexed it as soon as he reasonably could do so. The claim of plaintiff against Farnsworth, the fact that he is insolvent, and that plaintiff sustained damages to the amount claimed by reason of the failure of defendant to index the mortgage before the levy of the second writ, must be regarded for the purposes of this appeal as admitted or established by the evidence.

1. The plaintiff intervened in each of the two cases against Farnsworth to which we have referred, and claimed a lien on the attached property, by virtue of its mortgage, superior to that created by the levy of the writ of attachment. The answers to the petitions of intervention were, in effect, a denial of the claim of the intervener, and an averment that the attaching plaintiff had no notice of the mortgage at the time the writ was levied. The issues arising on the petition in the case in which Sperry, Watt & Garver were plaintiffs were, by stipulation, to be governed and determined by the decision on the issues presented by the petition of intervention in the case of Rider, Wallace & Co. v. Farnsworth. The decision in that case was adverse to the intervener, and its petition was therefore stricken from the record in the other case. The appellant contends that the question of fraud was adjudicated in those cases, and cannot be tried in this case. But it is not shown that the question of fraud was presented by the pleadings in the intervention proceedings, and it affirmatively appears that the only issue tried was that in regard to notice of the mortgage. The defendant was not a party to those actions, and is not estopped to now assert any valid defense resting upon the alleged fraudulent character of the mortgage...