George W. Cable Co. v. Israel

• Decision Date: 29 September 1916
• Docket Number: 30823
• Citation: 159 N.W. 241,177 Iowa 578
• Parties: GEORGE W. CABLE COMPANY, Appellee, v. W. W. ISRAEL et al., Appellants
• Court: Iowa Supreme Court

159 N.W. 241

177 Iowa 578

GEORGE W. CABLE COMPANY, Appellee, v. W. W. ISRAEL et al., Appellants

No. 30823

Supreme Court of Iowa, Des Moines

September 29, 1916

Appeal from Jefferson District Court.--F. M. HUNTER, Judge.

ACTION in equity for the appointment of a receiver for a certain stock of goods and for other relief. There was a decree as prayed, and the defendants, except W. W. Israel, appeal. The material facts are stated in the opinion.

Affirmed.

Parsons & Mills and Thoma & Thoma, for appellants.

Starr & Jordan, for appellee.

WEAVER J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

On October 4, 1907, in an action then pending in the district court of Jefferson County, the plaintiff herein recovered a money judgment against W. W. Israel. Several years later, the judgment defendant, Israel, became a partner with H. E. Eaton for carrying on a retail business in the drug trade at Fairfield in said county. The stock acquired by the firm was estimated at the value of $ 6,000, and Israel's interest in the partnership was a one-sixth part. On December 31, 1915, an execution having been issued upon the above mentioned judgment, it was placed in the hands of the sheriff, who levied, or attempted to levy, the same upon Israel's interest in the partnership business. The evidence tends to show that, armed with the writ, the sheriff went to the store where the goods were kept, found Israel in charge, and notified him of the levy and of the necessity under the statute for the officer to take possession long enough to make an inventory and appraisement of the goods. Israel not wishing to have the store closed for that purpose, it was then agreed between him and the officer that the former should himself make the inventory, or produce one which had previously been made, and the sheriff thereupon refrained from closing the store for such time as might be necessary for Israel to comply with his agreement respecting the invoice. Shortly afterward, the sheriff saw Eaton in the store and told him what had been done, and an understanding was arrived at between them, substantially the same as had been had with Israel, that the inventory should be made or obtained, or that one already made should be produced, and thus obviate the necessity of closing the store. It appears that, at the time of this transaction, a suit in equity was already pending between Eaton and Israel for a dissolution of the partnership, and thereafter, and immediately after the action taken by the sheriff as above noted, Eaton and Israel settled the controversy involved in such suit, and Eaton paid Israel $ 500, in consideration of which the latter assigned to him all his interest in the partnership and retired therefrom. Having acquired all the business and assets of the firm, Eaton immediately sold a part interest therein to the defendants, Gaumer Brothers, and, having thus eliminated Israel from the partnership, Eaton and Gaumer Brothers deny that the sheriff ever made a valid levy upon Israel's partnership interest, and furthermore say that the liability of Israel upon the debts of the firm was much in excess of the value of his interest therein, leaving nothing against which the execution could be enforced. Thereafter, this action was begun in equity to enforce the lien claimed to have been acquired by the levy of the execution.

The trial court, having heard the evidence, found that the levy made by the sheriff was valid and enforceable, and that whatever right or interest appellants acquired in the goods after said levy, was subject...