Kithcart v. Kithcart

• Court: Iowa Supreme Court
• Writing for the Court: DEEMER
• Citation: Kithcart v. Kithcart, 145 Iowa 549, 124 N.W. 305 (Iowa 1910)
• Decision Date: 20 January 1910
• Parties: KITHCART v. KITHCART ET AL.

145 Iowa 549

124 N.W. 305

KITHCART

v.KITHCART ET AL.

Supreme Court of Iowa.

Jan. 20, 1910.

Appeal from District Court, Wright County; Robert M. Wright, Judge.

In a supplementary proceeding to compel the Wabash Railroad Company, garnishee, to pay to plaintiff a specified part of a sum of money which had been paid by it to defendant in settlement of a claim for damages on account of personal injuries, the court rendered judgment for the plaintiff as against said garnishee, and the garnishee appeals. Affirmed.Hewitt & Wright, for appellant.

Sylvester Flynn and J. W. Henneberry, for appellee.

DEEMER, C. J.

In 1903 plaintiff instituted an action against defendant for divorce and alimony, and in that action the issuance of a writ of attachment against the property of the defendant was authorized by the court. Under this writ of attachment notice of garnishment was served upon the Wabash Railroad Company, requiring it not to pay any debt due by it to said defendant or thereafter to become due. The garnishee answered that it had been served with an original notice of an action by this defendant against it to recover damages on account of personal injuries alleged to have been received while in defendant's service, and that said suit had been removed to the Circuit Court of the United States, where it was then pending. This answer of the garnishee was controverted by the plaintiff, who alleged that the garnishee was indebted to the defendant for personal injuries in the sum of $50,000, and judgment was asked against the garnishee for whatever amount might be awarded her in the action for a divorce. Thereupon a stipulation was entered into between the plaintiff and the defendant in the divorce suit, wherein it was agreed that as it might be a long time before the action for damages brought by defendant against the garnishee could be settled, tried, or otherwise disposed of, the plaintiff should receive as permanent alimony one-fourth of the defendant's share of whatever sum he might obtain from said garnishee, whether by trial or compromise (defendant's share being the amount recovered or paid less attorney's fees, which should not exceed 50 per cent.), and that any decree which should be rendered in favor of plaintiff for alimony should be made a lien upon alimony in the hands of the garnishee due or to become due the defendant on his said claim, and that plaintiff should have judgment against defendant for costs. In pursuance of this stipulation a decree was entered in the divorce proceeding, giving to plaintiff an absolute divorce from defendant and judgment by way of alimony for one-eighth of the entire amount that defendant should recover, receive, or obtain from the Wabash Railroad Company in his action for personal injuries then pending in the federal court, and such judgment was declared to be a lien from the date of the garnishment notice upon any judgment which defendant might obtain in said suit and upon any amount that might be agreed upon between defendant and said company in settlement of said claim. It was provided further that upon the rendition of judgment against, or upon settlement with, said railroad company and in favor of the plaintiff for one-eighth of the amount of such judgment, or of the total amount agreed upon in settlement of said suit, by provision of this decree the railroad company, as garnishee, was to be discharged in the event that defendant failed to recover anything either in settlement or on trial of this said action. This decree was rendered in 1905, and a certified copy thereof was served upon the Wabash Railroad Company as garnishee.

In April, 1908, the plaintiff filed in her original action a supplementary petition, reciting the rendition of the decree and the service of a copy thereof as above stated, and alleged that on March 30, 1908, the Wabash Railroad Company, garnishee, effected a settlement with defendant, whereby it paid to and on behalf of said defendant about $8,000 in full settlement and discharge of the claim which said defendant had against said company for personal injuries, and demanded judgment against the railroad company for a portion of that amount in accordance with the terms of the previous decree. To this supplementary petition the railroad company interposed an answer admitting the settlement, but denying the validity of the decree and conditional judgment, and denying any indebtedness to the plaintiff. It also asked that it be discharged from any and all liability under the garnishment proceeding. The issues thus raised were tried upon a stipulation of facts, from which it appeared that a settlement was made by the railroad company with the defendant Jesse R. Kithcart, in pursuance of which there was paid to him the sum of $4,125 and paid to his attorneys the sum of $1,750, said attorneys having previously filed an attorney's lien for their services, and further that, preceding such settlement, a judgment had been recovered by said Kithcart against the railroad company in the United States Circuit Court for $8,000, which upon writ of error to the Circuit Court of Appeals was reversed, and that after a mandate had issued to the trial court the case was again noticed for trial, and the plaintiff therein filed an amendment to his petition, wherein he stated more fully the ground upon which he claimed the right to recover. Under these stipulated facts the trial court, hearing the case standing before it on plaintiff's supplemental petition and the answer of the railroad company thereto, entered a decree finding the facts as above recited and giving judgment in favor of plaintiff against the defendant and the railroad company, garnishee, for the sum of $734.37 and costs.

1. In view of our conclusion upon the issue tendered by plaintiff in her supplementary petition, it is not necessary to consider the effect of a garnishment. Indeed, there is much ground for saying that, if the action was bottomed upon the garnishment alone, it could not be sustained. It appears that, as already stated, plaintiff brought an action for divorce against her husband, Jesse R. Kithcart, one of the defendants herein, in which action she asked for an allowance of alimony. At the time of the commencement of that suit and until the final settlement of the defendant railway company, plaintiff's husband held a claim or cause of action sounding in tort, it is true, against the defendant railway company. In the divorce action it was agreed that plaintiff therein should have and receive as and for her permanent alimony one-fourth of whatever sum defendant, her husband, might obtain from the railway company whether upon trial or by way of compromise; and that any decree which should be rendered for alimony should be made a lien upon all money in the hands of the railway company due or to become due the defendant husband on his claim against the company. Pursuant to the stipulation a decree was granted, giving plaintiff a divorce and awarding her one-eighth of the entire amount that her husband should recover, receive, or obtain from the railway company in his action for personal injuries, and the judgment was declared a lien upon any judgment which the husband might obtain in his suit or upon any amount which might be agreed upon between him and the company in settlement of the claim. Provision was also made for a final decree against the railway company in the event judgment went against it or in case of settlement, which decree was to be in favor of plaintiff and against the railway company for one-eighth of the amount of the judgment, or of the amount agreed upon by way of settlement. This decree was rendered in the year 1905, and a certified copy thereof was immediately served upon the defendant railway company. Notwithstanding these agreements and decrees, the railway company, in the year 1908, settled with plaintiff's husband, paying no attention to her claims or to her decree, and now claims that it is fully released and discharged, and that plaintiff has no claim against it.

One holding a claim against a railway company, no matter whether sounding in tort or based upon contract, may, in this state, assign the same or a part thereof, and after notice of such assignment to the railway company it is bound thereby, and must respect such assignment. At common law claims growing out of tort could not be assigned; but in this jurisdiction all things in action are assignable. Code, §§ 3044, 3461. Under these sections it has been held that a liability for a tort may be sold, transferred, or assigned so as to give the holder priority over an attaching creditor of the assignor. Weire v. City, 11 Iowa, 49, 77 Am. Dec. 132. In that case Wright, J., speaking for the court, said: “But it is, in the second place, contended that the liability of the city was for a tort, and that this could not be assigned. This was true at common law, so far at least that the right of action for such injury could not be transferred. What change the Code has made in this respect we need not stop to inquire, for the reason that we entertain no doubt but that such a liability may be sold or transferred, if bona fide, so as to give the holder a priority over an attaching creditor of the transferrer. It may be sold just as a horse or any other property may be, and the title pass just as completely. And, whether the transferree could sue in his own name or not, the vendor still could not deny his title, nor could the creditors of such vendor. Not only so, but there was an action pending at the time of this assignment, and the transfer related to and included the verdict and judgment as well as the mere cause of action. That this might be done in the absence of fraud so as to give the assignee or vendee a good title to the judgment, and a right to control it as his own...