Iowa Mut. Liab. Ins. Co. v. De La Hunt
| Decision Date | 11 December 1923 |
| Docket Number | No. 35600.,35600. |
| Citation | 197 Iowa 227,196 N.W. 17 |
| Parties | IOWA MUT. LIABILITY INS. CO. v. DE LA HUNT (CEDAR RAPIDS SAV. BANK, GARNISHEE; DE LA HUNT, (INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. L. Anderson, Judge.
Proceedings in garnishment. The facts are fully stated in the opinion. Affirmed.Frank C. Byers, of Cedar Rapids, for appellant, Iowa Mut. Liability Ins. Co.
John M. Redmond, of Cedar Rapids, for appellee and intervener-appellant.
M. D. Porter, of Cedar Rapids, for garnishee-appellee.
This is a proceeding in garnishment. Trial was had to the court without a jury upon issues presented by the pleading of appellant controverting the answers of J. M. Dinwiddie as president of the Cedar Rapids Savings Bank, garnishee. Notice of garnishment was served by the sheriff upon the bank on October 9, 1922, and the answers by L. J. Derflinger, cashier, showing that appellee R. C. De La Hunt had $1,071.60 on deposit in the bank to his credit, were taken and returned by the sheriff. Later, an amendment, verified by J. M. Dinwiddie as president of the bank, to the answers of the cashier was filed. The amended answers of the garnishee set up that the funds deposited by appellee in the bank were borrowed from it upon two notes, one for $500 and one for $1,100, and were to be used by him for the sole purpose of carrying out a contract which he had with the city of Cedar Rapids for the construction of a sewer, and that an assignment in writing of the certificates to the bank as they were issued was taken to secure the payment of these notes. The denial of the answers of the garnishee applies only to the amendment verified by Dinwiddie. A jury was waived, and the issues were tried to the court, who found that the funds in the bank were deposited for the specific purpose of carrying out appellee's contract with the city, and that the lien of the garnishment was junior to the right of the bank to have the same so applied. The trial of issues upon a pleading controverting the answers of a garnishee is by ordinary proceedings, and either party is entitled to a jury. Unless, therefore, the court erred in the application of the law to disputed facts, its finding is conclusive upon this court. Dinwiddie, the president of the bank, testified concerning the loan to appellee as follows:
“If the court will permit me, I might say I made no loan without first investigating what it was for; investigating the property, the person, and the collateral. Mr. De La Hunt did borrow that money for the sole purpose as he stated, and he was not to have one cent more than was required to do it, and to be used solely and only for the completion of the sewer he was undertaking to make, and for which he assigned the certificates when they should be issued.
Q. He told you that is what he wanted the money for? A. Yes.
Q. That was the sole purpose? A. That is the only thing he wanted it for.”
[1][2][3] The foregoing version of the transaction is corroborated by the testimony of appellee, and, to some extent, by the testimony of other witnesses. The credibility of the bank's claim is impaired to some extent by the following circumstances: Appellee, with the knowledge and acquiescence of the bank, undertook to assign the money in the bank to his wife. A written instrument executed for that purpose was presented to the bank, and the account transferred from appellee to his wife. Two checks were drawn by appellee in his own name upon the account, and paid by the bank after the attempted assignment thereof to his wife. One of these checks for $28.40 was drawn in payment of the premium for a surety bond, as we understand the record, to be executed to the city as a part of his obligations under the sewer contract. The proceeds of the other check, which was for...
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