Hardin v. Iowa Ry. & Const. Co.

• Decision Date: 30 October 1889
• Citation: 78 Iowa 726,43 N.W. 543
• Court: Iowa Supreme Court
• Parties: HARDIN ET AL. v. IOWA RY. & CONST. CO. ET AL.

78 Iowa 726

43 N.W. 543

HARDIN ET AL.

v.IOWA RY. & CONST. CO. ET AL.

Supreme Court of Iowa.

Oct. 30, 1889.

Appeal from district court, Hardin county; S. M. WEAVER, Judge.

This is an action upon a promissory note executed by the defendant the Iowa Railway & Construction Company to the plaintiffs, and to foreclose certain trust-deeds upon real estate, and a chattel mortgage, and to appropriate and foreclose the right of the defendants in certain railroad bonds, all of which are held by the plaintiffs to secure the payment of the note. There was a decree for the plaintiffs, from which they appeal, and the defendants also appeal.H. S. Huff, for plaintiffs.

John Porter and C. E. Albrook, for defendants.

ROTHROCK, J.

1. The appeal of the defendants will first be considered. They complain that a motion for a continuance made by defendants was improperly and erroneously overruled by the court. This objection, it appears to us, cannot be sustained. The continuance was asked to enable the defendants to take additional evidence. The record shows that the court was authorized in holding that ample time had been given for that purpose.

2. Next it is claimed that the court erred in suppressing certain depositions of witnesses taken by the defendants. These depositions were taken upon notice that was both insufficient, as having been served upon a a clerk or employe of plaintiffs, and as not having been served a sufficient time before the depositions were taken. On this objection, as well as upon the question as to the continuance, we are invited to a perusal of a number of affidavits of counsel as to oral agreements and understandings between them touching the taking of the evidence and the management of the case. It is scarcely necessary to say that these affidavits must be disregarded, at least so far as they are in conflict. Code, § 213.

3. Both of the defendants are corporations, and, as the names indicate, they are railroad companies. As is usual when the building of a railroad is in contemplation, two companies were formed. One was the railroad company proper; that is, the projector of the enterprise. The other was the railroad construction company. The construction company undertook to build the railroad for a certain amount of the stock and bonds of the railroad company. But stock and bonds are not in and of themselves available for procuring right of way and iron, and making road-bed, and building bridges, and furnishing materials necessary to construct a railroad. It requires money. The plaintiffs are bankers, and they advanced money to the construction company, and it gave the note in suit for the money, and also gave, or caused to be given, the securities now sought to be foreclosed. Among other objections raised by defendants to the decree, it is claimed that the president and secretary were not authorized to execute the note. This claim is not well founded. It appears that the execution of the note was expressly authorized at a meeting of the board of directors of the corporation. It is claimed that it does not appear that there was any notice to the directors that a meeting would be held. If this was material, it was for the defendants to show that there was no notice. The record shows that they met and took official action, and it should be presumed that they were rightfully in session. The...