Markworth v. State Sav. Bank of Woden

• Decision Date: 20 June 1931
• Docket Number: No. 40618.,40618.
• Citation: 212 Iowa 954,237 N.W. 471
• Parties: MARKWORTH v. STATE SAV. BANK OF WODEN ET AL.
• Court: Iowa Supreme Court

212 Iowa 954

237 N.W. 471

MARKWORTH

v.STATE SAV. BANK OF WODEN ET AL.

No. 40618.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Hancock County; M. F. Edwards, Judge.

In this action the plaintiff filed a substituted petition, which will be hereinafter denominated the petition. Before answer, the defendants filed a motion asking that the cause be transferred to the equity side of the calendar for trial. This motion was sustained. Thereafter, the plaintiff amended his petition and filed a motion asking that the cause be transferred to the law side of the calendar for trial. The court sustained a motion by defendants to strike plaintiff's motion, the effect of which was to overrule plaintiff's motion to retransfer the cause to the law side of the calendar. From both adverse rulings by the court, the plaintiff appeals.

Affirmed.

MORLING and STEVENS, JJ., dissenting.Frank W. Senneff, of Britt, for appellant Herman F. Markworth, administrator of Paul C. Markworth, deceased.

Thomas & Loth, of Ft. Dodge, for appellees State Savings Bank of Woden and H. O. Swingen.

WAGNER, J.

The ultimate question for our determination is whether the alleged cause of action is triable at law or in equity. Proceedings in civil actions may be of two kinds, ordinary or equitable, and under our statutory law all forms of action are abolished. Section 10940, Code 1927. Section 10941, Code 1927, provides: “The plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive.” (Writer's italics.)

“An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket.” Section 10944, Code 1927.

Section 10946, Code 1927, provides: “The defendant may have the correction made by motion at or before the filing of his answer, where it appears by the provisions of this code wrong proceedings have been adopted.”

[1][2][3] Before the filing of the answer, the defendants filed a motion asking that the cause be transferred to the equity side of the calendar for trial. This motion was sustained, and exceptions to the ruling taken by the plaintiff; this presents the first question for our determination: Was plaintiff's alleged cause of action, as stated by the averments of his petition, such that equity has exclusive jurisdiction? If the plaintiff's case is founded upon an equitable estate, title, or interest, or if the remedy sought is one that only a court of equity can administer, then equity has exclusive jurisdiction. See McAnulty v. Peisen, 208 Iowa 625, 226 N. W. 144. The determination of the question as to whether or not the court was correct in sustaining defendants' motion to transfer the cause to equity in the first instance must be determined from the averments of the petition, to which we now turn. It is alleged in the petition:

“That the plaintiff is the duly appointed, acting and qualified Administrator of the estate of Paul C. Markworth, who died on or about the 14th day of June, 1926, and the defendant, State Savings Bank of Woden, Iowa, is a Corporation engaged in the Banking business at Woden in Hancock County, Iowa, and the defendant H. O. Swingen is a resident of said County and Cashier of said bank.

That plaintiff's decedent, Paul C. Markworth, at the time of his death, held a policy of insurance issued by the Prudential Life Insurance Company of America, in the principal sum of Two Thousand ($2,000.00) Dollars, which policy this plaintiff is informed and believes was issued by said Company upon the life of said Paul C. Markworth in the month of October, 1922, payable upon the death of the said Paul C. Markworth to his estate.

That the plaintiff is unable to set out copy thereof for the reason that he does not have the same and that said policy was at the time of the death of the said Paul C. Markworth, in the possession of the defendants.

* * * That said policy of insurance contained stipulation therein providing that in the case of permanent disability or mental incapacity of the insured, Paul C. Markworth, which said policy was in force and effect, that the premium thereon would cease and the said Company would pay the insured, or his estate a certain stipulated sum each month for each $1000.00 of the amount of the insurance carried as shown by the face of the policy. This plaintiff is unable to state the amount thereof, or the exact stipulation contained in said policy for the reason hereinbefore alleged, and states that he has no exact information as to the length of disability or mental incapacity of the deceased prior to his death, but alleges the fact to be such decedent was permanently and totally disabled prior to the date of his death, and that the said Prudential Life Insurance Company found and determined that he was so disabled, and that under and by virtue of the terms of this said policy of insurance there was due on said policy on account thereof, at the time of his death, the sum of Six Hundred Fifty-two and 53-100 ($652.53) Dollars and that at the time of the death of the said Paul C. Markworth there was due on said policy, the face thereof of $2,000.00 and the said sum of $652.53 on account of the disability provisions thereof.

That some time, subsequent to the issuance of said policy of insurance to Plaintiff's decedent, that said Paul C. Markworth, to secure moneys owing by him to the State Savings Bank of Woden, Iowa, executed to said defendants, either or both of them, an assignment of said policy for collateral security only for the amount of the money legally owing by him to the defendant, State Savings Bank of Woden. This plaintiff is unable to set forth a copy of said assignment or to give the date thereof for the reason that said information and assignment is in the possession of the defendants themselves. The plaintiff is unable to state the exact indebtedness owing by the deceased at the time said policy was assigned as herein alleged, but avers upon information and belief, that at the time of the death of said Paul C. Markworth, the defendants were fully paid. * * *

Plaintiff further states, upon information and belief that the defendants, after the death of plaintiff's decedent, made claim to the insurance company, that they, either or both of them, were entitled to receive the proceeds of said policy by virtue of said assignment thereof, and did procure said Company to pay over to them, either or both of them, the sum of Two Thousand Two Hundred Ninety Two and 53-100 ($2229.53) Dollars which was paid to said defendants on or about the 20th day of February, 1929.

That at said time, the defendants represented to said Insurance Company, that the deceased was indebted to the State Savings Bank of Woden, Iowa, in the sum of $2292.53, and that pursuant to such representations the said Insurance Company paid over to said defendants, either or both of them, the sum of $2292.53.

That the statements made by the defendants were false and fraudulent and were known to be false when made, and that said statements and representations were made for the purpose of inducing said Insurance Company to pay over to the Defendants, the money owing by said Insurance Company on account of the death of the said Paul C. Markworth by the Terms of its policy of Insurance, and for the purpose of defrauding this plaintiff and the estate of the said Paul C. Markworth.

That said Insurance Company did rely upon such false and fraudulent statements, and relying thereon did pay over said money hereinbefore alleged, to the defendants, all to the great damage to this plaintiff and to the estate of Paul C. Markworth, deceased, and all persons interested therein. * * *

That the moneys paid over by said Insurance Company to the defendants were wrongfully had and received by the Defendants, and were moneys belonging to the estate of Paul C. Markworth. * * *

That said moneys were and are the property of the estate of Paul C. Markworth and this plaintiff as Administrator thereof, and that they were wrongfully obtained by the defendants and said defendants wrongfully withhold the payment thereof from the plaintiff as Administrator, to the damage of the estate of Paul C. Markworth. * * *

That demand has been made therefor, but that said defendants have refused to pay over said moneys to this plaintiff.

That said moneys are the property of this plaintiff as administrator aforesaid, and the defendants hold the same in trust for the plaintiff as administrator of said estate, and for the use and benefit of the estate of Paul C. Markworth, deceased, and all persons interested therein. (Writer's italics.)

Wherefore the plaintiff demands judgment against the defendants and each of them in the sum of $2,292.53 with interest at 6 per cent. per annum from the 20th day of February, 1929, and costs of this action.”

[4][5][6] It will be noted that it is alleged in the petition that there was due on the policy the sum of $2,652.53, but that the insurance company paid the defendants only the sum of $2,292.53. The plaintiff does not seek to recover the value of the policy from the insurance company, but the amount of certain moneys--a fund--which has been received by the defendants from the insurance company, and which money or fund it is alleged is the property of the plaintiff, and that the defendants hold same in trust for the plaintiff. It is apparent that upon the death of the deceased, the legal title to the money due upon the policy remained in the insurance company until paid to the defendants, when such legal title passed to the defendants. The plaintiff never had any legal title to the money or fund for which suit is brought, said legal title being at all times either in the insurance company or in the defendants to whom...