Gregory v. Dr. J. W. S. Howell & Co.

• Decision Date: 10 October 1902
• Citation: 91 N.W. 778,118 Iowa 26
• Parties: J. W. GREGORY, Appellee, v. Dr. J. W. S. HOWELL & CO. AND BANKERS' INVESTMENT COMPANY, Appellants. EXCHANGE BANK OF MORNING SUN, IOWA, Defendant
• Court: Iowa Supreme Court

91 N.W. 778

118 Iowa 26

J. W. GREGORY, Appellee, v. Dr. J. W. S. HOWELL & CO. AND BANKERS' INVESTMENT COMPANY, Appellants.

EXCHANGE BANK OF MORNING SUN, IOWA, Defendant

Supreme Court of Iowa, Des Moines

October 10, 1902

Appeal from Louisa District Court.--HON. W. S. WITHROW, Judge.

ACTION to recover the possession of a promissory note purporting to have been signed by plaintiff. The action was also aided by an injunction restraining the defendant the Bankers' Investment Company from prosecuting an action on said note before a justice of the peace of Polk county, Iowa. The trial court found for the plaintiff, and defendants Howell & Co. and the Bankers' Investment Company appeal.

Affirmed.

Geo Wambaugh and Hale & Hale for appellants.

Fred Courts and H. E. Curran for appellee.

OPINION

DEEMER, J.

Plaintiff Gregory, made and executed a note for the sum of $ 100 to Howell & Co., on or about February 27, 1900, due six months after date. Howell & Co. sold the note, before maturity, to the Bankers' Investment Company. The note purports to be payable at Des Moines, Iowa. After the maturity of the note it was placed in the hands of attorneys for collection, and these attorneys gave Gregory notice that they held the note, and should expect payment thereof. At Gregory's request a firm of attorneys living at his home county, Louisa, wrote the attorneys for the investment company, asking that they send the note to a local bank for inspection. On receipt of this letter the note was forwarded to the defendant the Exchange Bank of Morning Sun, in Louisa county. This was done on the 19th day of September, 1900. On the 27th day of that month, after inspecting the note, and concluding that there had been a material alteration therein, Gregory commenced an action in the district court of Louisa county against all the above-named defendants for the recovery of the note, alleging that the note was obtained through fraud and deceit, was without consideration, and had, after its delivery, been fraudulently altered, by inserting therein a stipulation making the instrument payable at Des Moines, Iowa. Notice of this action was served on the Exchange Bank alone. On September 29th the Bankers' Investment Company commenced action against the plaintiff herein before a justice of the peace in and for Polk county, Iowa and notice thereof was served on plaintiff, Gregory. Thereupon Gregory filed an amendment to his petition in the replevin action, asking for a writ of injunction restraining the investment company from prosecuting its action before the justice of the peace of Polk county. A writ was issued as prayed, and defendants other than the Exchange Bank appeared in the district court of Louisa county, and filed a motion to dissolve the injunction, based on the ground that that court had no jurisdiction, and that the note had been fraudulently and wrongfully obtained. They also filed a plea in abatement of the action, wherein practically the same questions were raised as in the motion to dissolve. This motion was overruled, as also was the plea in abatement, and after a hearing on the merits plaintiff was awarded the possession of the note, and the injunction was made perpetual.

Two questions are presented on this appeal. First. Was jurisdiction of the note fraudulently obtained by the Louisa county district court? Second. Did that court have jurisdiction to restrain the investment company from prosecuting its action before the justice of the peace of Polk county? The first is largely a question of fact, and the second one of law. Regarding the first question, it is sufficient to say, without setting forth the evidence, that we do not think the alleged fraud is established. Plaintiff through his attorney, asked that the note be sent to a bank in his county, that he might inspect the same; he at that time believing that he had not executed a note to Howell & Co. After seeing the instrument, and finding the signature genuine, but...