Lehigh Sewer Pipe & Tile Co. v. Gjellefald
| Decision Date | 13 March 1928 |
| Docket Number | 38715 |
| Citation | 218 N.W. 475,205 Iowa 778 |
| Parties | LEHIGH SEWER PIPE & TILE COMPANY, Appellee, v. O. N. GJELLEFALD, Appellant, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Winnebago District Court.--C. H. KELLEY and J. J. CLARK Judges.
This was an auxiliary proceeding under Chapter 502, Code of 1924 in which an order was made for the examination of the judgment debtor and his wife. An application was made to modify this order from the old ruling, from which application the applicant appealed.--Dismissed.
Appeal Dismissed.
Thompson Loth & Lowe, for appellant.
Blythe Markley, Rule & Clough, for appellee.
ALBERT, J. STEVENS, C. J., and FAVILLE, DE GRAFF, and WAGNER, JJ., concur. MORLING, J., takes no part.
C. E. Paine and O. N. Gjellefald were partners, under the name of Paine & Gjellefald. On February 17, 1926, the plaintiff obtained a judgment against them for $ 1,900, interest, and costs. This judgment was against the firm and the individual members thereof. Execution was issued thereon, and returned nulla bona. Whereupon, plaintiff filed an application, under Chapter 502, Code of 1924, setting up the proper facts, and praying that an order be issued requiring O. L. Gjellefald and Mrs. Alta Gjellefald, his wife, to appear before the court for an examination in relation to the property owned by them or the disposition that had been made of it, as provided by the aforesaid chapter. Accordingly, an order was made by the court, the court also appointing J. E. Howard as referee, to conduct the examination, with an order to subpoena witnesses, etc.
On June 3, 1927, the defendant O. N. Gjellefald filed a motion to modify the aforesaid order, alleging that Mrs. Alta Gjellefald was the wife of the defendant, and that she was not a competent witness to give testimony against him in this proceeding, because of Section 11260, Code of 1924, for the reasons: "(3) That such witness is not a party to the suit;" and (4) "this defendant is the sole surviving defendant to the judgment, and her testimony cannot be said to be sought against the other defendant, who is deceased, and who has no personal representative."
This motion was accompanied by an affidavit asserting the above facts. On July 5, 1927, this motion to modify the order was overruled and denied, and the plaintiff excepted to such ruling, and on the same date the defendant O. N. Gjellefald appealed from the ruling of the court.
The errors assigned by the appellant are:
1. That the court erred in ordering the examination of defendant's wife as a witness against him.
2. That the court erred in refusing to modify the order made without notice, so as to remove the requirement that the defendant's wife appear as a witness against him.
The appellee, however, insists that plaintiff has no standing in this court, for the reason that the order requiring a witness to appear for examination is not an appealable order. To this contention we will first turn our attention.
The evident intent and purpose of this chapter of the Code (502) are to discover property belonging to the judgment debtor, to the end that the same may be by proper proceedings utilized for payment of said judgment. To attain this end, Sections 11800 to 11803, inclusive, provide, in substance, that the court may make an order for an examination of the judgment debtor, and that the hearing on such order may be before the court, or a referee appointed by the court to conduct such examination, whereupon the referee may call the judgment creditor into court, and conduct said examination, which shall be taken down in writing and preserved.
Section 11804 provides that other witnesses may be examined when the court so orders, or when subpoenaed by the referee, and testify upon any proceedings under this chapter, in the same manner as upon the trial of an issue.
It is apparent from these sections of the Code that the application for and the issuance of the order are wholly ex-parte, and that the statute does not require that notice of the application for said order shall be given the judgment debtor. As above noted, the court or referee is given the power to examine the defendant, and also to examine any other witnesses that the court or the referee may designate. The original order made in this case is strictly within the powers conferred by the statute, and the judgment debtor has no reason to complain against the same, unless it be by reason of his contention that his wife was ordered subpoenaed herein, and that she is an incompetent witness, under the statute.
Section 11260, Code of 1924, reads as follows:
It is conceded that the...
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