Mahanke v. Cleland

• Decision Date: 22 December 1888
• Citation: 76 Iowa 401,41 N.W. 53
• Parties: MAHANKE v. CLELAND, JUDGE, ET AL.
• Court: Iowa Supreme Court

76 Iowa 401

41 N.W. 53

MAHANKE

v.CLELAND, JUDGE, ET AL.

Supreme Court of Iowa.

Dec. 22, 1888.

Certiorari proceeding by Elizabeth Mahanke against John B. Cleland, judge of the district court, Twelfth judicial district of Iowa, and John Barlow, clerk of the district court in and for Butler county, Iowa, and said district court of said county, to test the validity of an order requiring the plaintiff to answer questions in regard to a certain issue involved in an action then pending, to which she was a party defendant.Hemenway & Grundy, for petitioner.

ROBINSON, J.

John Smallpage commenced an action in the district court of Butler county, in which the petitioner in this proceeding and one John Mahanke were made parties defendant. The petition in that action alleges that Smallpage is the owner of a judgment rendered by said district court against said John Mahanke, on which an execution has been issued and returned unsatisfied, and on which there is due about the sum of $800; that before said judgment was rendered said John Mahanke, being the owner of certain lands in Butler and Grundy counties, “did make a pretended sale and conveyance, by deeds of the same,” to the plaintiff in this action, “with intent to hinder, delay, and defraud the plaintiff in the collection of his said judgment;” that the plaintiff in this action “took said deeds of conveyance with the like intent, and without paying therefor any consideration.” The petition prays that the conveyances be set aside, and that the land therein described be subjected to the payment of said judgment. The plaintiff in this action, by her answer, admitted the allegations in regard to the judgment, and that the conveyances specified had been made to her, but denied that they were made without consideration, and denied all allegations of fraud. While the action aforesaid was pending, the plaintiff in this action was called before a notary public, and sworn, for the purpose of taking her deposition to sustain the issues on behalf of the plaintiff Smallpage, and was asked the following question: “When did you first know that John Mahanke had made and executed to you deeds of his interest to the land left by Henry Mahanke, being the real estate described in the petition?” Thereupon the witness objected to answering such question, on the ground “that the witness is a defendant in the case; that the only issue in the case is the good faith of the conveyance made by John Mahanke to the witness, set out in the petition; and the matter sought to be elicited would render the witness liable to criminal prosecution;” and “objected to any further examination concerning issues in the case upon like grounds.” The parties agreed in writing that plaintiff was seeking to prove the affirmative allegations relating to the issue, by interrogating Elizabeth Mahanke in regard to the circumstances under which the deeds were executed by John Mahanke to her, the consideration paid by her, etc.; and that a return should be made to the court for its determination as to whether this testimony would be competent under the issue, and whether the witness would be excused, under section 3647 of the Code, from answering such questions. A return was made by the notary of the deposition, objections, and agreement. The district court overruled the objection made by the witness, and ordered that she “answer questions propounded to her relative to the said issues joined in said cause.” This proceeding is designed to test the validity of that ruling and order.

The attorneys for petitioner have made no argument, but content themselves with suggesting a few points for the consideration of this court. The questions raised by the suggestions of counsel require an examination of the following sections of the Code: “Sec. 3647. But when the matter sought to be elicited would tend to render him criminally liable, or to...