Goddard v. Guittar

• Decision Date: 16 May 1890
• Citation: 45 N.W. 729,80 Iowa 129
• Parties: GODDARD ET AL. v. GUITTAR.
• Court: Iowa Supreme Court

80 Iowa 129

45 N.W. 729

GODDARD ET AL.

v.GUITTAR.

Supreme Court of Iowa.

May 16, 1890.

Appeal from district court, Pottawattamie county; C. F. LOOFBOUROW, Judge.

This is a proceeding by garnishment, whereby plaintiffs, as attaching creditors of Skelton and Rice, seek to charge the garnishees, on the ground that they hold property of defendants in attachment. A motion to strike the pleading of plaintiffs, controverting the garnishees' answer denying the liability in the proceeding, was sustained. Plaintiffs appeal.Sapp & Pusey, for appellants.

Wright, Baldwin & Haldane, for appellee.

BECK, J.

1. The plaintiff, upon an attachment, issued in an action against Skelton and Rice, caused the garnishees in the case to be served with process of garnishment. They answered, alleging that, prior to the commencement of plaintiffs' action, the defendants executed to them a chattel mortgage upon a stock of merchandise, of which defendant took possession under the mortgage, before the issuing of plaintiffs' attachment, and proceeded to foreclose the mortgage by notice and sale, and applied the money realized thereon upon the debt secured by the mortgage, a balance remaining unpaid, as the amount realized by the foreclosure was less than the debt. The plaintiff filed an answer alleging that the garnishees induced the debtors to execute the mortgage by false and fraudulent representations, to the effect that the garnishees would, upon the performance of certain conditions, among which was the retiring of Rice from the firm, permit Skelton to retain the possession of the goods, and would assist him to go on with the business until the maturity of the notes secured by the mortgage, and that the debtors were induced by these and other false representations to sign the mortgage without reading; and therefore they did not know that the mortgagees had the power, under the mortgage, to take poss ssion of the goods. It is alleged in the answer of the plaintiff that the garnishees failed to keep and perform these promises, though the debtors did fulfill the conditions upon which these promises were made. Plaintiffs charge that the mortgage was obtained for the purpose of depriving the debtors of the opportunity of paying plaintiffs' claim, and is therefore fraudulent as to them, as well as to the debtors, and is null and void. The garnishees moved to strike out the answer of plaintiffs, on the ground that it set up no facts avoiding the mortgage. The motion...