Heins v. Wicke

• Decision Date: 24 May 1897
• Parties: HEINS v. WICKE ET AL.
• Court: Iowa Supreme Court

102 Iowa 396

71 N.W. 345

HEINS

v.WICKE ET AL.

Supreme Court of Iowa.

May 24, 1897.

Appeal from district court, Linn county; William P. Wolf, Judge.

The following facts appear from the pleadings and evidence: November 18, 1887, the defendant the Iowa State Insurance Company issued its policy of insurance for $1,500 upon a store building in Fairfax (afterwards called Vanderbilt), Linn county, Iowa, to Joseph Zabortskey. September 4, 1888, the property was sold to H. E. Smalley, and the policy assigned to him, and the assignment indorsed upon the policy. September 11, 1888, Smalley sold the property to E. Z. Bontty, and the policy was assigned to him, which assignment was indorsed upon the policy. December 29, 1888, Bontty sold the property to the defendant Philip Wicke, assigned the policy to him; said assignment being indorsed upon the policy, and consent given by the company. Bontty's assignment read: “I hereby assign to Philip Wicke the policy of insurance within written, subject to all liabilities, and entitled to all rights and privileges, to which I am liable and entitled by virtue thereof.” December 29, 1888, when Bontty made his sale of the lot to Wicke, he took a purchase-money mortgage from said Wicke securing a note of same date for $1,200, which bore interest at 8 per cent. annually. One provision of said mortgage was to the effect that said Philip Wicke was to “keep all buildings on said premises constantly insured for two-thirds of their value in good and satisfactory insurance company for the benefit of the mortgagee.” That said mortgage was filed for record December 31, 1888, and duly recorded. September 10, 1890, said buildings were destroyed by fire, and that the mortgage debt was and still is unpaid. That the policy heretofore mentioned was the only insurance upon said property when said mortgage was given, as well as since said time. October 4, 1890, said Philip Wicke made proof of loss under said policy, in which he mentions the mortgage upon said premises which he executed to Bontty. Thereafter the defendant the insurance company demanded additional proof of loss. This demand was made after the company knew of the existence of the mortgage. The value of the lot, irrespective of the building insured, is a matter of contention; it being given by witnesses from $250 to $700. February 2, 1891, Philip Wicke made an assignment of said policy to the defendant Catherine Wicke, as follows: “For value received, I hereby sell, transfer, and assign unto Catherine Wicke all my claim and cause of action against the Iowa State Insurance Company by reason of loss under policy No. 32,293, issued by said company on the 21st day of December, 1887, to Joseph Zabortskey, and assigned to me before said loss; authorizing her to sue for, recover, receive, and receipt for all money due from and owing by said company under and by virtue of such loss and policy of insurance.” The defendant insurance company was notified of the existence of the mortgage and of the plaintiff's claim to the insurance money prior to the time Philip Wicke assigned said policy to Catherine Wicke. Catherine Wicke knew of the mortgage long before she took the assignment of the policy. It is claimed, and there is evidence tending to show, that Catherine Wicke had actual notice of the plaintiff's claim to the insurance money prior to taking the assignment of the policy, though, as to this, the evidence is in conflict. The insurance company refusing to pay the loss on the ground that the property was incumbered by mortgage in violation of the terms of the policy, Catherine Wicke brought suit on the policy, and recovered a judgment in the district court on November 17, 1891, which was affirmed by this court on January 22, 1894. 90 Iowa, 4, 57 N. W. 632. Plaintiff in this case intervened in the suit by Catherine Wicke upon the policy, and claimed the proceeds of the policy under his mortgage, but finally withdrew, and dismissed his intervening petition, without prejudice. October 22, 1891, and before Catherine Wicke had obtained a judgment against the insurance company, plaintiff commenced this action. The claim in the original petition was that plaintiff be subrogated to the judgment rendered in favor of Catherine Wicke, and he prayed for a decree against Catherine Wicke and the insurance company, subrogating him, to the amount of his mortgage, in the judgment rendered on said policy. There was no prayer for general relief. The original notice served upon the company asked the same as the petition, and expressly stated that “no other additional judgment is sought than to be subrogated to the right of Catherine Wicke in and to said judgment.” The insurance company did not appear or answer this petition. The petition was amended, the last amendment being filed after default had been entered against the company. In this amendment plaintiff pleaded that the company had paid the money into court in disregard of his rights; that Catherine Wicke had drawn the same; and he asked and obtained a personal judgment against the insurance company and Catherine Wicke. Catherine Wicke appeared and answered in said suit. She admitted the execution of the note and mortgage, set out the assignment made by Bontty to Philip Wicke and from the latter to herself, that she paid a valuable consideration therefor, that she had no knowledge of any interest claimed by Bontty in the policy of insurance, and that plaintiff was estopped from having or claiming any interest in said policy adverse to her, and denied all other allegations of the petition. Plaintiff, in a reply, admitted the assignment by Bontty, but averred that it was made only to transfer the legal title to Philip Wicke, and that the defendant took the policy with knowledge and notice of the rights of plaintiff's assignor, and after notice to the debtor, the insurance company, of the rights and claims of plaintiff's assignor. Afterwards plaintiff amended his petition, pleading the recovery of the judgment by Catherine Wicke against the insurance company; that he had recovered a judgment on the note and for a foreclosure against Philip Wicke for $1,678.72 and attorney's fees and costs, and that the real estate was worth not more than $200; that the Iowa State Insurance Company paid the full amount of the judgment which had been rendered against it to the clerk of the Linn district court, and said Catherine had, without authority of law, drawn said money. He asked that his rights to the proceeds of said policy might be established as superior to the rights of said Catherine, that the decree of foreclosure be extended to the proceeds of said policy, and for judgment against Catherine Wicke and the insurance company. Catherine Wicke answered said amendment, pleading that the mortgaged property after the fire was worth $700, and denied, in substance, all the allegations of the amendment. Afterwards she amended, pleading the incumbrance in violation of the terms of the policy; that a prior action had been brought by the plaintiff against Philip and Catherine Wicke in said court to foreclose said mortgage which proceeded to judgment and decree, and that such action estops plaintiff from maintaining this action. July 9, 1894, plaintiff again amended his petition, averring the payment of the money by the insurance company, and asking a personal judgment against Catherine Wicke and the insurance company. There was a denial by Catherine Wicke. The court entered a judgment against Catherine Wicke and the insurance company for $1,500, and both parties appeal. Because the court did not render a judgment in plaintiff's favor for the full amount he claimed to be due to him, he appeals. August 19, 1895, the Iowa State Insurance Company filed a motion to set aside the default entered against it, which was overruled, and from this ruling it also appealed. Affirmed on appeals of plaintiff and Catherine Wicke, and reversed on appeal of insurance company.Rickel & Crocker, for appellant Catherine Wicke.

H. Scott Howell & Son, for appellant Iowa State Ins. Co.

Heins & Heins, for appellee.

KINNE, C. J.

1. We will first consider the appeal of the Iowa State Insurance Company. From the facts already set forth it appears that the insurance company did not appear in this case in the district court, nor did it in fact file any pleading therein. It was defaulted because it failed to appear and defend in the action. Now, said company, having been served with notice that subrogation to the fund to be paid in on the judgment before rendered against it was all the relief asked, and the notice expressly stating that “no other additional judgment is sought than to be subrogated to the right of Catherine Wicke in and to said judgment,” it had a right to rely upon the fact that no other or further claim would be made against it in the suit, in the absence of notice of making another or additional claim. The company had no interest in the controversy between plaintiff and Catherine Wicke as to the appropriation of the fund due from it under said policy. It was immaterial to it who got the money, if its liability under the policy, and the judgment thereon, was fully and finally discharged. Therefore it could have had no interest in joining in the litigation between said contesting parties so long as no personal claim was made against it. Nothing is better settled than that where a defendant served with notice of a suit does not appear and answer, but makes default, no decree or judgment can be entered against such defendant granting relief not specifically prayed for, or which is not clearly within the contemplation of a general prayer for relief. The default in such case entitled the plaintiff to recover only to the extent of the relief sought in the petition. Johnson v. Mantz, 69 Iowa, 710, 27 N. W. 467;Byam v. Cook, 21 Iowa, 392;Lafever v. Stone, 55 Iowa, 49, 7 N. W. 400;Tice v. Derby, 59 Iowa, 312, 13 N. W. 301;Marder v....