McDonnell v. Henderson

• Decision Date: 07 June 1888
• Citation: 38 N.W. 512,74 Iowa 619
• Parties: MCDONNELL v. HENDERSON, JUDGE.
• Court: Iowa Supreme Court

74 Iowa 619

38 N.W. 512

MCDONNELL

v.HENDERSON, JUDGE.

Supreme Court of Iowa.

June 7, 1888.

Proceeding by certiorari.

Code Iowa, § 3136, provides that an order for the appearance and examination of the judgment debtor may be obtained upon proof, by affidavit, that the debtor has property which he refuses to apply to the satisfaction of the judgment.McGarry & Brown, for plaintiff.

W. H. Berry and H. McNeil, for defendant.

ROTHROCK, J.

It appears from the petition for the writ of certiorari, and from the return made thereto by the defendant, that the plaintiff is confined in the jail of Warren county upon a commitment for an alleged contempt, in refusing to pay over certain money claimed to be in his possession in satisfaction of two judgments against him. The judgments were duly and regularly rendered against the defendant, and executions were issued thereon and returned unsatisfied. Thereupon, upon proper proceedings, the plaintiff was required to appear before the district court of Warren county for an examination touching the question as to whether he had any property which he unjustly refused to apply towards the satisfaction of the judgment. The proceedings were had under chapter 3, tit. 18, Code. Plaintiff appeared, and, upon his examination, it appeared that he had money more than sufficient to satisfy the judgments, and that said money was in his house, and in the actual possession of his wife. An order was made that the wife pay over a sufficient amount of said money to the sheriff to satisfy the debt and costs, and that the plaintiff herein should not in any manner, either directly or indirectly, interfere with the money in the hands of his wife, or in any manner prevent the payment of said money by his wife to the sheriff. The plaintiff was present when this order was made, and excepted thereto, and on the same day he filed a motion to set aside the order. The record shows that this order was served upon the wife, and was read by the sheriff to the plaintiff. The wife did not deliver the money to the sheriff, and could not well do so, because the plaintiff, after the order was made, and before it was served, had taken the same into his own possession, in violation of the order. Some proceedings were had looking to an examination of the wife touching the possession of the money, but, owing to her sickness, she was not required to appear before the court. An order was made for the plaintiff to appear for further examination; and the plaintiff being present in court, he was ordered to appear for examination forthwith, to which order he excepted. A further examination was had, upon which the court found that the plaintiff had under his control a sufficient amount of money to pay the judgment and costs, and he was ordered to pay the same within three days, and that, if he failed to do so, to be considered in contempt of court. This order contained the following recital: “And the said Peter McDonnell, now being in court, is required to observe and obey this order, as herein before provided, without further notice.” An exception was entered to this order. At the expiration of the time fixed for the payment of the money, the plaintiff appeared and filed an affidavit in alleged excuse of his refusal to comply with the order. A cause was docketed against the plaintiff in the name of the state, entitled contempt proceedings, and thereupon the plaintiff demanded a jury, which demand was...