Meyer v. Houck

• Decision Date: 19 May 1892
• Citation: 85 Iowa 319,52 N.W. 235
• Parties: MEYER ET AL. v. HOUCK ET UX.
• Court: Iowa Supreme Court

85 Iowa 319

52 N.W. 235

MEYER ET AL.

v.HOUCK ET UX.

Supreme Court of Iowa.

May 19, 1892.

Appeal from district court, Shelby county; A. B. THORNELL, Judge.

The defendants are husband and wife. On the 27th day of November, 1889, the defendant C. F. Houck executed and delivered to Calla Houck his promissory note for about $1,200, and a chattel mortgage upon a stock of goods and merchandise, to secure the payment of the note. The mortgage was filed for record on the 4th day of December, 1889, and duly recorded. On the 7th day of December, 1889, the plaintiffs commenced an action against C. F. Houck upon an account for goods sold and delivered to him, and sued out an attachment, and caused the same to be levied upon the mortgaged goods. Calla Houck intervened in the action, and claimed the goods as mortgagee. The plaintiffs answered her petition of intervention by claiming that the mortgage was invalid and void as to creditors of C. F. Houck, because it was made with intent to defraud said creditors. There was a trial by jury, and when the plaintiffs completed the introduction of their evidence the intervener moved the court to direct the jury to return a verdict against the plaintiffs. The motion was sustained, and the jury returned the verdict as directed, upon which judgment was entered. Plaintiffs appeal.Smith & Cullison, for appellants.

Foss & Stuart and H. W. Byers, for appellees.

ROTHROCK, J.

1. An attack is made by appellees upon the record in this court upon the ground that appellants did not pay or secure the clerk of the district court his fees for a transcript, and because the rulings of the court were not preserved by a bill of exceptions. An examination of the record as now on file shows that these objections are not well taken.

2. Exceptions were taken by appellants to certain rulings of the court made during the trial, touching the admissibility and competency of evidence. An examination of appellees' abstract shows that nearly all of these exceptions are not based upon the true record. Such as are properly presented appear to us to be without merit, not being prejudicial to the plaintiffs. We do not regard them of sufficient importance to point them out specifically.

3. It is claimed that appellees' abstract was unnecessary, and we are asked by a motion filed by appellants to strike it from the files, and tax the costs thereof and the costs of the transcript made necessary by reason of said abstract to the appellees. The motion is overruled. We think that appellees' abstract was necessary to a fair understanding of some of the rulings of the court above referred to, and that, while it is perhaps a little more voluminous than necessary, yet not so much so as to require that the costs thereof be taxed to the appellees.

4. We come now to the only material question in the case, which is: Did the court err in directing the jury to return a verdict against the plaintiffs? A determination of this question involves an examination of the evidence upon the issue involving the alleged fraudulent character of the chattel mortgage. The burden of proof was on the plaintiffs to show that the mortgage was fraudulent as to them. The pleadings are so framed as to impose that burden upon the plaintiffs. The mortgage and note were shown to have been duly executed and delivered and the mortgage filed for record. These instruments were valid upon their face, and it was incumbent upon the plaintiffs to show the fraud which they alleged. Carson v. Foley, 1 Iowa, 524. The plaintiffs introduced the defendant Calla Houck as a witness. She testified that her husband made the note and mortgage to her for money loaned by her to him. This fact is not really in dispute, except so far as it may be called in question by certain inferencessought to be drawn from other facts disclosed in evidence. Some of these other facts are that the parties to the mortgage are husband and wife, and it is not shown that the wife took a note from her husband at the time she loaned the money; that the husband was in failing circumstances when the mortgage was made, and that the wife knew that he was insolvent; and that the mortgage covered all of the property of the husband; and that the mortgage was not promptly recorded; and that the husband retained the possession of the stock of goods, and sold from the stock at retail, the same as if they were not mortgaged, and rendered no account to his wife for sales made. It is claimed by counsel for appellants that, because of these and other facts and inferences, it was the duty of the court to submit the question of fraud to the jury. It is insisted that the jury would have been fully warranted in finding from the evidence that the mortgage was fraudulent. We do not think this position can be maintained. Our examination of all the facts leads us to the conclusion that, if the motion to direct the verdict had been overruled, and the cause submitted to the jury, and a verdict found for the plaintiffs, it would have been the duty of the court to set aside the verdict on the ground that the evidence was insufficient to sustain it. But it is further claimed that there was some evidence tending to show that the transaction in question was fraudulent, and that it was the duty of the court to submit the case to the jury if there was any evidence, however slight. It may be conceded that there was some evidence. There are one or two facts which might be regarded as badges of fraud; but, when weighed in the balance with the other evidence, they do not constitute such a conflict as would authorize a verdict for the plaintiffs. The rule of practice in relation to directing verdicts which has prevailed in this state is well understood. A motion to direct a verdict for the defendant has been regarded as a demurrer to the evidence, and it has always been held that such a motion not only admits the truth of the fact found, but every fact and conclusion which the evidence conduces to prove, or which the jury might have inferred therefrom in his favor. The rule was stated in very nearly the foregoing language in Jones v. Ireland, 4 Iowa, 63. And that practice has obtained in this state up to the present time. There are a multitude of cases adhering to the rule. It is unnecessary to cite them. They will be found collected in McClain's Digest, (volume 2, pp. 335-338.) The practice has been that where there is what is called a “ scintilla of evidence” to be considered by the jury, it is error to direct a verdict. The rule has been stated in various forms of expression, as will be seen by an examination of the cases. In Way v. Railway Co., 35 Iowa, 585, the following language is employed: “Hence, under the statute, and our previous rulings, it follows that it is the duty of a nisi prius court in this state to submit the case to the jury upon the evidence where it only tends even to prove it, although the court should feel in duty bound to set aside a verdict for the plaintiff if the jury should so find.” It is further said in that case that “in other states a different, and perhaps better and more consistent, rule obtains, whereby the court may direct the jury how to find, where it would set aside a verdict otherwise.” Citing Brown v. Railroad Co., 58 Me. 389;Wilds v. Railroad Co., 24 N. Y. 430. In other cases the statement of the rule has been modified, as in Starry v. Railway Co., 51 Iowa, 419, 1 N. W. Rep. 605, in which the district court directed a verdict for the defendant, this court said: “Such being the case, it would have been the duty of the court to set aside a verdict in favor of the plaintiff. Why, then, occupy the valuable time of the court at the public expense for the purpose of going through a useless form and ceremony?” Language to the same effect will be found in the case of Bothwell v. Railway Co., 59 Iowa, 192, 13 N. W. Rep. 78.

After a thorough examination of adjudged cases, we have reached the conclusion that the practice...