Oberholtzer v. Hazen

• Decision Date: 14 December 1894
• Citation: 92 Iowa 602,61 N.W. 365
• Parties: OBERHOLTZER v. HAZEN, SHERIFF.
• Court: Iowa Supreme Court

92 Iowa 602

61 N.W. 365

OBERHOLTZER

v.HAZEN, SHERIFF.

Supreme Court of Iowa.

Dec. 14, 1894.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

This is an action at law brought by the plaintiff against the defendant, who is sheriff of Pottawattamie county, to recover damages for the alleged conversion of a certain stock of merchandise, consisting of tobacco, cigars, pipes, etc., owned by one C. M. Oberholtzer, and by him mortgaged to the plaintiff to secure a note, in the sum of $7,927, made by the said C. M. Oberholtzer to the plaintiff. The defense was that defendant took possession of the said stock of goods under and by virtue of an attachment issued in a certain case wherein M. Kinports was plaintiff, and C. M. Oberholtzer was defendant, and that he afterwards sold the same, and applied the amount received upon the judgment that Kinports recovered in his suit; that plaintiff's mortgage was wholly without consideration, and executed with intent to hinder, delay, and defraud the creditors of C. M. Oberholtzer; that plaintiff was at all times the owner in fact of the stock of merchandise, and that C. M. Oberholtzer had no interest therein; that, while the business was carried on in the name of C. M. Oberholtzer, yet the obligations created by him were in fact the obligations of plaintiff, and the mortgage was made as a scheme or trick to enable plaintiff to defraud his creditors; that C. M. Oberholtzer was in no way indebted to plaintiff, for that the business wholly belonged to plaintiff. The reply was a denial of the allegations of the answer, and a plea of estoppel. On the issues thus joined there was a trial to a jury, which returned a verdict for plaintiff, on which judgment was rendered, and defendant appeals. Affirmed.Flickinger Bros., for appellant.

Wright & Baldwin and John P. Organ, for appellee.

DEEMER, J.

There are 54 assignments of error in this case, but they may all be grouped under five heads: (1) Alleged error in the admission and rejection of testimony; (2) failure to give instructions asked; (3) error in the instructions given; (4) refusal of the court to set aside the special findings of the jury; and (5) error in the court in refusing to instruct for defendant.

1. Under the first head counsel have argued a great many questions presented by the record in the admission and rejection of testimony, to some of which, only, we will refer, the others not being of sufficient importance to demand consideration, or are clearly not prejudicial. The plaintiff was a witness in his own behalf, and testified that the note given him by C. M. Oberholtzer had not been paid to him. He was then interrogated, upon cross-examination, as to whether it had been paid to others for him, and objections were sustained to such questions, because not cross-examination. Strictly speaking, the questions were not cross-examination, but the witness elsewhere stated he did not know the amounts which had been paid others. The other persons to whom payments were made were upon the stand, and gave in detail the amounts received by them. So, if answers should have been permitted, the ruling is clearly without prejudice. One H. R. Oberholtzer, a witness for the defense, was asked, on cross-examination, how much time C. M. Oberholtzer put in about the business, and an objection to the question was sustained. It was not cross-examination; and, even if it were, the whole matter was fully brought out by other witnesses, and no prejudice resulted. The same witness was asked why the business of C. M. Oberholtzer did not pay, and objection was sustained thereto. He afterwards answered the question by saying he did not know why. Witness Howe was asked as to who seemed to be the financial manager of the business while he was around, and objection was sustained to this. The ruling was clearly correct, for it called for a conclusion of the witness. This witness detailed all he saw of the management of the business, and it was for the jury to say who the manager was. An invoice taken of the stock after it had been taken by plaintiff on his mortgage was offered in evidence by plaintiff, and was admitted by the court, simply to identify the goods, and not as proof of value. Defendant objected to it because it was incompetent to prove value. It is sufficient to say, in this connection, that the court, in admitting it, expressly ruled that it was not admissible for that purpose. Defendant offered in evidence a sworn answer filed by plaintiff in an action against him in the district court, wherein he was seeking to avoid liability on a certain guaranty by saying that the person to whom he referred was not Oberholtzer. It is manifest that such fact, if shown, would throw no light upon the issues in this case--First, because it is not shown when the answer was made (if made after the making of the mortgage in suit, it was entirely immaterial); and, second, if made before, we know of no rule which would make it material to the issues presented, except for impeaching purposes, and it was not so offered.

2. The first instruction asked by defendant was a peremptory one to return a verdict for him. We will have occasion hereafter to refer to this, and will now consider others asked. The other instructions asked by the defendant, defining what circumstances amounted to badges of fraud, and explaining the burden of proof, were, so far as correct, given by the court in his charge to the jury. And the questions presented are nearly all determined by the case of Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906, adversely to appellant. The court in effect instructed the jury that if, in executing the mortgage to plaintiff, C. M. Oberholtzer intended thereby to hinder or...