Hawkins v. Vermeulen
| Decision Date | 23 June 1930 |
| Docket Number | 40117 |
| Citation | 231 N.W. 361,211 Iowa 1279 |
| Parties | EARL HAWKINS et al., Appellees, v. JACOB B. VERMEULEN et al., Defendants; SOPHIA AKERS, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 17, 1931.
Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.
Action in equity, to subject certain real property to the payment of a judgment. Decree as prayed. The defendant Sophia Akers appeals.
Reversed.
George M. Faul, for appellant.
Chester J. Eller, for plaintiffs, appellees.
Milton W. Strickler, for defendants.
On June 17, 1928, Earl Hawkins obtained a judgment against Jacob B. VerMeulen in the district court of Polk County for $ 4,000. A few days prior to the above date, the said VerMeulen conveyed the property involved in this action by warranty deed to the appellant, Sophia Akers, for an expressed consideration of one dollar and other good and valuable consideration. This action was commenced by Hawkins against VerMeulen and Akers to set aside said conveyance and to subject the property described in the instrument of conveyance to execution for the satisfaction of such judgment.
The ground upon which relief was asked was that the conveyance was without consideration and in fraud of creditors. Thereafter, and during the pendency of this action, VerMeulen instituted voluntary bankruptcy proceedings in the Federal court at Des Moines. Following this action, J. Wayne Hill, who was appointed trustee in bankruptcy, was substituted as plaintiff herein, and this action was thereafter prosecuted in his name. The trustee filed an amendment to plaintiff's amended and substituted petition, adopting the allegations thereof, alleging that the transfer in question was made within three months prior to the institution of the bankruptcy proceedings, and praying relief upon the ground stated in the prayer of the substituted petition. The claim of the trustee that the transfer was made less than three months prior to the proceedings in bankruptcy was wholly ignored by the court in its decree, which was based upon the finding made that the transfer from VerMeulen to appellant was without consideration and wholly fraudulent, as against the creditors of the former. The decree established the judgment in favor of Hawkins as a lien upon the property in controversy, ordered that special execution issue, and that the property be sold thereunder. It was further provided therein that the proceeds derived from such sale should be applied as follows: First, to the payment of the costs of this action; second, to the payment of the costs in the law action in which the judgment was obtained; third, that the amount of the lien claimed by Hawkins's attorney on the judgment be paid; and fourth, "then pay to the trustee in bankruptcy the balance collected from the sale of said property, not to exceed the amount of said judgment and interest remaining unpaid." The decree further provided that, in the event that the property, when sold on special execution, did not bring enough to satisfy the Hawkins judgment, appellee Hill, trustee in bankruptcy, should qualify as receiver, to take immediate possession thereof, upon the filing of a bond for $ 500. Appellant resided on the property, and, according to the testimony, VerMeulen, who is a cousin, boarded with her. The decree further ordered appellant and VerMeulen to remove from the premises within 30 days from the date on which the receiver should file a bond, and that, in the event that they failed to do so, a writ of possession should issue for their removal. It thus appears that the relief granted was for the sole and exclusive benefit of Hawkins. The rights and claims of all other creditors, if any, represented by the trustee in bankruptcy were ignored. The trustee has not appealed.
It appears from the record that, very shortly after the judgment for $ 4,000 was obtained by Hawkins against VerMeulen, proceedings auxiliary to execution were instituted. The testimony in the auxiliary proceedings was taken by an official court reporter as commissioner, transcribed, duly certified, and filed in the office of the clerk of the district court of Polk County. Although appellant was not made a party to the auxiliary proceedings, she was called and examined as a witness in behalf of the judgment creditor. VerMeulen was also examined as to his property, with particular reference to the transfer complained of. The evidence introduced by appellee upon the trial of this action consisted of a transcript of the testimony of appellant. The remaining testimony showed the bankruptcy proceedings, and included certain remote transactions and circumstances of little weight, and much of it of doubtful relevancy. The transcript of the testimony of VerMeulen was admitted without objection. The transcript of the testimony of appellant was received, however, over her objection. The sufficiency of the objection interposed is questioned on this appeal. Her objection, as disclosed by the record, was that the transcript of appellant's testimony showed that it was taken in another proceeding, to which she was not a party, and that it was not the best evidence. The objection was overruled. At the conclusion of the reading of the transcript, appellant moved that the same be stricken, upon the grounds previously urged, and upon the further ground that no foundation had been laid for the introduction thereof. The motion was likewise overruled. The objection interposed to the offer of the transcript should have been sustained. The statute under which a transcript is admissible (Code, 1927), is as follows:
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