LaRned v. City of Dubuque

• Decision Date: 07 October 1892
• Citation: 53 N.W. 105,86 Iowa 166
• Parties: LARNED v. CITY OF DUBUQUE ET AL., (POOR, INTERVENER.) ADAMS v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

86 Iowa 166

53 N.W. 105

LARNED

v.CITY OF DUBUQUE ET AL., (POOR, INTERVENER.)

ADAMS

v.CITY OF DUBUQUE.

Supreme Court of Iowa.

Oct. 7, 1892.

Appeal from district court, Dubuque county; J. J. NEY, Judge.

About November 3, 1863, one Sara Lee Porter was the owner and holder of certain bonds which had been issued by the city of Dubuque. At said time one H. A. Wiltse agreed with B. W. Poor, intervener, that they would procure said bonds to collect at 25 per cent. of the amount. November 4, 1863, Wiltse, for himself and intervener, procured from Sara Lee Porter said bonds for collection, giving a receipt therefor, which provided: “These bonds I agree to collect, advancing all necessary costs, at twenty-five per cent. of the whole amount made, provided I collect the full amount of the bonds, principal and interest. If I fail to collect the full amount, I am to make no charge.” This contract was by Wiltse assigned by parol, as to one half thereof, to intervener. In October, 1863, Wiltse and intervener brought suit against the city of Dubuque upon said bonds. March 16, 1866, judgment was rendered thereon against the city for $8,389.25, to draw 10 per cent. interest, and for costs, $5,945, with 6 per cent. interest. A claim made for a vendor's lien upon certain property of the city was denied. In March, 1866, an appeal was taken from the judgment denying the lien, to the supreme court, and on June 13, 1866, the judgment of the lower court was affirmed. June 18, 1866, Wiltse and intervener notified the city that they claimed an attorneys' lien for 25 per cent. of the whole amount of the judgment, and entered the same in the judgment docket opposite the entry of the judgment. October 29, 1866, execution having been issued and returned nulla bona, and a demand to levy a tax to pay the judgment having been made upon and refused by Mayor Thompson, Bush, and the other aldermen, suit was begun by intervener for Sara Lee Porter against said mayor and aldermen, to enforce their personal liability to pay the said judgment, because of their refusal to levy a tax to pay the same. A verdict was rendered against defendants, which was set aside by the court. An appeal was taken to the supreme court, which on June 19, 1867, affirmed the judgment of the district court. 22 Iowa, 391.

During the pendency of the last above mentioned suit the council of the city of Dubuque had taken from its treasury the sum of $12,000, and placed it in a bank to the credit of the mayor and one of the alderman, for the express purpose of indemnifying the mayor and alderman for their personal liability for refusing to levy the tax to pay the Porter judgment. November 11, 1867, while said suit was pending for retrial, and while said $12,000 was deposited as above stated, the defendant, the city, by its mayor and other officers, and with the aid of one Roberts acting for Wiltse, held a secret conference with Sara Lee Porter in the city of Dubuque, and, in the absence of intervener, concealed from her the fact that the city had $12,000 deposited in the bank to indemnify the mayor and aldermen. They then compromised her claim and judgment against the city, and the suit against the mayor and aldermen, by paying her $5,000, and agreeing to pay certain costs. Mrs. Porter executed an assignment of the judgment to L. D. Randall, trustee, appointed under a city ordinance. Mrs. Porter was hurried out of the city to avoid meeting intervener. The assignment was not filed or recorded, and its existence was unknown to the plaintiff and to intervener until long after its execution. December 6, 1867, said Roberts paid to intervener $312.50, and took from him the following receipt: “Received of Sara Lee Porter, by the hand of T. C. Roberts, three hundred and twelve dollars and fifty cents, to apply on my claim for fees in the case of said Porter against the city of Dubuque, and same against John Thompson and others, in the district court of Dubuque county, and in the supreme court, without prejudice to my claim to enforce my attorney's lien for the collection of the balance due me under the original agreement between the said Sara Lee Porter and H. A. Wiltse and myself, and not otherwise; the intent being that the balance of my fees shall be recovered from the city of Dubuque. B. W. POOR.”

August 22, 1870, Sara Lee Porter died intestate in South Carolina, leaving G. L. Porter as her sole heir. August 18, 1873, G. L. Porter died, leaving a will in which he bequeathed to plaintiff all of his property. Before December, 1874, Randall, trustee,resigned, and the city accepted his resignation. September 27, 1882, administration was granted by the probate court of Aiken county, S. C., upon the estate of Sara Lee Porter, deceased. September 11, 1884, the judgment in favor of Sara Lee Porter, and against the city of Dubuque, was, by order of the probate court, sold, and was purchased by the plaintiff. April 15, 1885, plaintiff brought this suit, and in her petition set out the recovery of the judgment by Sara Lee Porter, its nonpayment, and her title to the same by purchase at administrator's sale, also under the will of G. L. Porter. September 12, 1885, intervener, Poor, filed his petition of intervention in the case of Larned v. City of Dubuque. This petition was afterwards amended, and, in substance, it set out the fact of his employment by Sara Lee Porter; the services he had rendered; the recovery of the judgment; the filing of his attorney's lien; that no part of his claim had been paid, except $312.50, which was paid December 6, 1867; and asking that judgment be rendered against S. P. Adams, administrator, etc.; that the amount found due him might be declared to be a lien on the money due said Porter on said judgment. December 31, 1885, after this suit was brought, and 11 years after he had resigned his trust, Randall, as trustee, executed a satisfaction of the judgment of Sara Lee Porter against the city of Dubuque. March 12, 1886, S. P. Adams, as administrator of Sara Lee Porter, brought suit at law against the city of Dubuque to recover the balance due upon said Porter judgment, setting out the death of Sara Lee Porter; his appointment as her administrator; the recovery of the judgment against the city of Dubuque; and that there was due thereon over $8,000. February 18, 1887, plaintiff filed a supplemental petition in equity, setting forth the recovery of the judgment; her title thereto; the assignment made by Sara Lee Porter to Randall, trustee; that said assignment was procured by fraud; was without consideration; and asking that it be set aside; and asking for the recovery of the amount of said judgment after crediting the $5,000 paid Mrs. Porter.

January 6, 1886, the defendant the city of Dubuque, answering plaintiff's original petition, admitted the recovery of the judgment by Sara Lee Porter, and denied all other allegations in said petition. Averred that Sara Lee Porter, in her lifetime, designed and transferred in writing, for a valuable consideration, and in full payment and satisfaction of said judgment, all her interest therein, and ownership thereof, to the city of Dubuque, and its representatives. Also averred that the judgment was fully paid, satisfied, and discharged. Plaintiff replied, averring that the sum paid for said judgment was paid by the city of Dubuque. March 25, 1889, the city of Dubuque and Randall, defendants, answered the supplemental petition of plaintiff, denying all allegations therein contained. September 2, 1889, S. P. Adams, as administrator of the estate of Sara Lee Porter, filed an answer and cross bill to plaintiff's petition, setting up the same matter as is set out in plaintiff's supplemental petition. September 7, 1889, the defendant city answered the cross bill of Adams, administrator, denying every allegation therein contained, and pleading the statute of limitations of 5 years, the statute of limitations of 10 years, and the statute of limitations of 20 years. March 25, 1889, the defendant city answered the petition of intervention of Poor, admitting the recovery of the Porter judgment, and denying all other allegations therein; averring that on November 11, 1867, and during her lifetime, Sara Lee Porter, for a valuable consideration, and in full payment and satisfaction of her judgment, and in writing, did assign and transfer all her interest therein, and claim thereto, to the city of Dubuque and its representatives; that all claims and liens under said judgment, including the lien claimed by intervener, were fully paid, satisfied, and discharged. April 20, 1889, the cause, so far as the issues raised by the supplemental petition in equity were concerned, was transferred to the equity calendar. January 4, 1890, the defendant city filed an amendment to its answer to intervener's petition, setting up that intervener received $312.50 in full payment for all services rendered by him; that intervener's claim is barred; that plaintiff, her attorney, S. P. Adams, and intervener, have combined and colluded to cheat and defraud defendant. Defendant city, answering to the petition of S. P. Adams, administrator, denies all allegations therein contained, and pleads other matters which we need not set out.

The issues in the law action were, by consent, to be determined at same time as in the equity case, and a jury was waived. January 15, 1890, plaintiff amended her supplemental petition, averring that the assignment and satisfaction of the Porter judgment were without consideration, and that Randall never had any right to satisfy said judgment, which allegations defendant city denied. The court below dismissed the petition of plaintiff, of intervener, and of Adams, administrator, and ordered that each party pay his own costs. Each of said parties excepted, and appeal.

William Graham, for appellant Helen Larned.

B. W. Poor, pro se, and C. C. Cole, for intervener, appellant.

S. P. Adams, pro se, appellant.

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