Hall v. Carter

Decision Date08 May 1888
Citation37 N.W. 956,74 Iowa 364
CourtIowa Supreme Court


Appeal from district court, Palo Alto county; LOT THOMAS, Judge.

On the 23d of August, 1880, the Palo Alto circuit court rendered judgment in favor of plaintiff, John D. Hall, and against defendant, B. Franklin, for $142.78 damages, and $13.50 costs. On the 11th day of October, 1886, A. B. Carter and A. D. Franklin were served with garnishment process by virtue of an execution issued on said judgment. The answers of the garnishees, in which they denied all liability, were afterwards taken in court, and a pleading controverting such answers was duly filed. To this pleading the garnishees filed an answer. The evidence tends to show that, for some time prior to the garnishment, a drug business had been carried on at West Bend, under the personal control of the defendant; that about the last of September, 1886, the stock of goods used in the business was sold to the garnishee A. D. Franklin, and that on or about the 8th day of October, 1886, he sold the goods to A. B. Carter. When garnished, Carter was owing, of the price he had agreed to pay for the goods, about $430. The case was tried to a jury, and a verdict rendered in favor of the garnishees. From the judgment rendered on the verdict the plaintiff appeals. It is claimed on behalf of the appellant that, prior to the sale to A. D. Franklin, the drug-store was in fact owned and carried on by the defendant, but that the business was done in the name of his wife, E. Franklin, or E. Franklin & Co., for the purpose of hindering and delaying the plaintiff in the collection of his judgment; that the sale to A. D. Franklin was fraudulent; made without consideration, for the purpose of placing the goods beyond the reach of the creditors of the defendant; and that the unpaid portion of the purchase price in the hands of Carter, when garnished, was really the property of defendant, and, as such, should be subjected to the payment of the judgment of plaintiff.

The eleventh paragraph of the charge, referred to below, was as follows: “While the burden of proof is upon the plaintiff to establish the fraud alleged, and he must establish the same to your reasonable satisfaction, yet it is not necessary that the same be established by positive or direct proof. It is sufficient to warrant you in finding fraud when all the circumstances surrounding the several transactions, as proven by the testimony and the proven facts in the case, are sufficient to reasonably satisfy the jury of the fraudulent character of the transaction.”McCarty & Linderman and Harrison & Jenswold, for appellant.

Soper & Allen and Kelly & O'Connor, for appellees.

ROBINSON, J., ( after stating the facts substantially as above.)

1. In its charge to the jury the district court used the following language: “The plaintiff controverts the answers given by the garnishees, and for that purpose files the following pleading, to-wit.” The pleading referred to was not included in the charge by copy, but was read by the court as a part of its charge. Substantially the same course was pursued in regard to the answer which the garnishees had filed to the plaintiff's pleading controverting their answers. This court has repeatedly disapproved similar practice. Fitzgerald v. McCarty, 55 Iowa, 704, 8 N. W. Rep. 646;Bryan v. Railway Co., 63 Iowa, 465, 19 N. W. Rep. 295;Porter v. Knight, 63 Iowa, 366, 19 N. W. Rep. 282;Hollis v. Insurance Co., 65 Iowa, 460, 21 N. W. Rep. 774;Lindsay v. City of Des Moines, 68 Iowa, 368, 27 N. W. Rep. 283. It was the duty of the district court to state the issues in its charge, and this should have been wholly in writing. Code, § 2788. In this case the charge was, in effect, partly oral and partly in writing. The jury were not told to consult the pleadings, and could not determine what such pleadings contained from reading the written charge. They were forced to depend upon their recollection of what the court had read, or were compelled to select, from the papers submitted to them upon retiring for deliberation, the pleadings which were actually read as a part of the charge, at the risk of mistake. We do not think this is good practice. The entire record of the case satisfies us, however, that no prejudice resulted from this error of the court. The third paragraph of the charge presented the issues quite fully, and other paragraphs further presented the issues, and directed the jury as to their duties. Several special findings were returned, which indicate that the issues were fully understood by the jury. We therefore conclude that the verdict should not be disturbed on the grounds just considered. Dorr v. Simerson, 34 N. W. Rep. 753.


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