Glancy v. Ragsdale
| Decision Date | 03 May 1960 |
| Docket Number | No. 49938,49938 |
| Citation | 102 N.W.2d 890,251 Iowa 793 |
| Parties | C. E. GLANCY, Appellant, v. Clyde E. RAGSDALE and Kerr-McGee Oil Industries, Inc., Appellees, Calvert Fire Insurance Company, Appellant, Bessie M. Lunnon, C. W. Harvey, American Granite Corporation, Appellees. |
| Court | Iowa Supreme Court |
Alex M. Miller and Joseph B. Joyce, Des Moines, for appellants.
George H. Cook, Des Moines, for appellee, C. W. Harvey.
The substantial controversy here is between the Calvert Fire Insurance Company, the major appellant, and the appellee C. W. Harvey. The plaintiff Glancy was on October 26, 1956, the owner of a Buick automobile which was damaged in a collision with another vehicle owned by the defendant Kerr-McGee Oil Industries, Inc., and driven by the defendant Ragsdale. The Calvert Fire Insurance Company, which we shall hereafter refer to as Calvert, carried collision insurance on plaintiff's car, with a $50 deductible clause. The damage to the car being shown to be $890.89, Calvert promptly and on October 30, 1956, paid this amount to Glancy, less the $50 deductible, taking as evidence of the payment a written instrument called a 'loan receipt'. Copy of this was attached to Calvert's pleading in this case.
On February 1, 1957, suit was commenced in the Polk District Court by Glancy against Ragsdale and Kerr-McGee Oil Industries, Inc. These defendants will be hereafter referred to as Kerr-McGee. On February 7, 1957, the bailiff of the Des Moines Municipal Court levied on Glancy's cause of action against Kerr-McGee, by virtue of an execution issued upon a judgment held by Bessie M. Lunnon. On March 4, 1957, sale was had under this levy and the cause of action purchased by Bessie M. Lunnon for $25, and on March 8 next the bailiff issued his bill of sale to the purchaser. Whatever rights Bessie M. Lunnon acquired by this levy and sale have since been assigned to her then attorney, C. W. Harvey.
After the levy and sale the matter lay dormant, so far as the record shows, until April 24, 1959, when the original case, Glancy v. Kerr-McGee, came on for trial upon plaintiff's petition and Kerr-McGee's counter-claim. The trial resulted in a judgment for Glancy for the amount of the damage to his car, $890.89 and costs. The matter was at all times through the trial handled by attorneys for Calvert. Neither Bessie M. Lunnon or her assignee Harvey attempted to assert any rights under their purported purchase of the cause of action until it had been fully tried and the fruits obtained. The judgment against Kerr-McGee was paid to the clerk of the district court, and the substantial controversy here is between Calvert and Harvey over which is entitled to receive payment from the clerk.
On May 7, 1959, the judgment then held in Glancy's name against Kerr-McGee was levied upon under an execution on a judgment against Glancy held by American Granite Corporation. On May 19th next, Harvey filed his motion to release this levy, and it has been released.
On May 25, 1959, Calvert and Glancy filed their motion to release the levy and void the bill of sale issued to Bessie M. Lunnon and held by Harvey as assignee. The principal reliance in this motion, and the only one we find it necessary to discuss, is contained in the allegation that under the loan receipt, Exhibit A attached, all the interest of Glancy except $50 was pledged and assigned to Calvert and was its property. To this Harvey filed a resistance, which is fairly summed up as denying Calvert's claim on these grounds: 1, Calvert was not a party to the original action, had not intervened, and so had no standing to obtain any relief through the procedure adopted; 2, Exhibit A is not a conveyance or assignment, but is merely a pledge which has not been foreclosed, and Calvert Fire Insurance Company therein named as pledgee was not a party to the action; 3, if Calvert advanced costs and controlled the suit against Kerr-McGee, it did so only as agent for Glancy and acquired no rights thereby; 4, Calvert was guilty of laches by not intervening after the levy and before sale, and by taking no action to assert its rights for more than two years after the levy and sale; 5, since Iowa Rules of Civil Procedure require that all actions be brought in the name of the real party in interest, Calvert waived any rights it might have had by procuring and permitting the action to be brought and prosecuted in Glancy's name; and 6, the loan receipt, Exhibit A, is no more at best than a pledge or mortgage and was not acknowledged or filed for record, it gave no notice to a levying creditor of Calvert's rights and was void as against such creditor under our recording acts.
The questions raised by the motion to set aside levy and sale and the resistance thereto were apparently determined by the trial court as questions of law. No evidence appears to have been taken. The court denied the motion to set aside levy and sale and ordered the proceeds of the judgment against Kerr-McGee in the sum of $890.89 paid over to Harvey. It was apparently of the opinion that there was in some manner evidence of bad faith or fraud on the part of Glancy and Calvert in bringing the action in Glancy's name; that the loan receipt was not sufficient to convey any interest to Calvert because the description of the property damaged was not filled in; and that in the absence of any showing that Harvey or his assignor had knowledge of Calvert's interest in the claim against Kerr-McGee prior to the levy and sale such interest could not be asserted against them. It will be observed that the court agreed with Harvey in its first and third grounds given for its judgment, and that its second ground is based on something not asserted or pleaded by the resistor, but which rather seems to have been conceded by him.
I. We can deal shortly with the resistor's contention that Calvert had no standing to assert its rights by motion, because it had not intervened in the original action. We do not understand Harvey to claim the proceeding by motion to set aside the levy is improper in itself, but only that it is not available to Calvert. Harvey had himself used the procedure by motion in setting aside the levy of the American Granite Company. We fail to see why the same procedure is not available to anyone having a real interest in the subject matter of the levy, whether or not he was a party to or had intervened in the original action. In Rursch v. Gee, 237 Iowa 1391, 1398, 25 N.W.2d 312, 315, we said: 'The subrogee may protect his rights by intervention * * * and in other ways, perhaps * * *'. We see no reason why the procedure by motion to set aside levy may not be one of the 'other ways'. In fact, the point is ruled by Sections 639.60 and 639.61, Code of 1958, I.C.A., discussed in Division VI below.
II. The trial court thought there was such a failure of description of the interest pledged or otherwise conveyed by the loan receipt that it amounted to nothing. The resistor did not raise this question. He seemed to be fully advised as to what property had been damaged; his pleading in resistance to Calvert's motion alleged only that at best there was no more than a pledge of the claim against Kerr-McGee, which pledge had not been foreclosed.
Since the loan receipt is important at this point, we set it out:
'Date Make and Model
'Oct. 30, 1956 1956 Buick Super Loan
---------------------
'Amount Motor No. Serial No. Receipt
'$840.89 19824435 5C405 4568
'Received from the Calvert Fire Ins. Co. (hereinafter referred to as 'Company') the amount shown above as a loan, without interest, repayable only in the event and to the extent of any net recovery the undersigned may make from any person, persons, corporation or corporations, or other parties, causing or liable for the loss or damage to the property described below, or from any insurance effected on such property, and as security for such repayment the undersigned hereby pledges to the said 'company' all his, its or their claim or claims against said person, persons, corporation or corporations or other parties, or from any insurance carrier or carriers, and any recovery thereon, and hereby delivers to said 'company' all documents necessary to show his, its or their interest in said property.
'The undersigned covenants that no settlement has been made by the undersigned with any person, persons, corporation or corporations, or other parties against whom a claim may lie, and that no release has been given to anyone responsible for such loss, and that no such settlement will be made, nor release given without the written consent of the said company.
'The undersigned hereby agrees to promptly present claim and, if necessary, to commence, enter into and prosecute suit against such person or persons, corporation or corporations, or other parties, through whose negligence or other fault the aforesaid loss was caused, or who may otherwise be responsible therefor, with all due diligence, in his, its or their own name.
'In further consideration of said advance the undersigned hereby guarantee(s) that he, it or they are the owner(s) of said property and entitled to recover upon said claim for loss or damage thereto. And hereby appoint(s) the managers and/or agents of the said 'company' and their successors severally, his, its or their agent(s) and attorney(s)-in-fact, with irrevocable power, to collect any such claim or claims, and to begin, prosecute, compromise or withdraw in his, its or their name, but at the expense of the said 'company,' any and all legal proceedings that the said 'company' may deem necessary to enforce such claim or claims, and to execute in the name of the undersigned, any documents that may be necessary to carry the same into effect for the purposes of this agreement.
'Any legal proceedings are to be under the exclusive direction and control of said 'company.'
'The property...
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