Petty v. Hayden

• Decision Date: 20 December 1901
• Citation: 115 Iowa 212,88 N.W. 339
• Parties: PETTY v. HAYDEN ET AL. (H. U. HAYDEN PUB. CO., INTERVENER).
• Court: Iowa Supreme Court

115 Iowa 212

88 N.W. 339

PETTY

v.HAYDEN ET AL. (H. U. HAYDEN PUB. CO., INTERVENER).

Supreme Court of Iowa.

Dec. 20, 1901.

Appeal from district court, Lee county; Henry Bank, Judge.

Action at law aided by attachment. The Hayden Publishing Company intervened, claiming to be the owner of the attached property. This plaintiff denied. On the issues thus joined the case was tried to a jury, resulting in a verdict and judgment for intervener, and plaintiff appeals. Affirmed.T. B. Snyder and J. R. Frailey, for appellant.

Casey & Stewart and W. S. Hamilton, for appellee.

DEEMER, J.

Plaintiff commenced an action against defendants, and caused a writ of attachment to issue, which was levied on certain printing materials then in Ft. Madison, Iowa. One Hyatt, trustee, intervened, but the various petitions filed by him were held bad on demurrer. On April 16, 1897, an order was made, on plaintiff's application, for the sale of the attached property, which provided that the proceeds should be turned over to the clerk to abide the further determination of the respective rights of the plaintiff and intervener thereto. Pursuant to this order the property was sold, and the proceeds deposited with the clerk. On September 13, 1897, and before the money was turned over to plaintiff, the H. U. Hayden Publishing Company intervened, claiming to be the owner of the property. At the same time Hyatt, as trustee, dismissed his petition, which was then pending on a motion to strike. A motion to strike the Hayden Publishing Company petition was overruled, and plaintiff filed an answer thereto, some parts of which will receive further attention as we proceed. After issues joined, and on the day before the case was reached for trial, plaintiff filed a motion for change of place of trial because of prejudice of the judge, and of undue influence of attorneys for intervener over the judge and the inhabitants of the county. This motion was not submitted until the case was called for trial, and was then overruled. The case then proceeded, with the result hitherto stated. It is contended that intervener's petition was filed too late. Section 3928 of the Code provides, in substance, that any person other than defendant may intervene in an attachment proceeding at any time before payment of the proceeds of the attached property to plaintiff. This is sufficient answer to the first point made by the appellant.

2. The motion for change of venue was supported by affidavit of plaintiff and of three disinterested witnesses. The bill of exceptions recites: “That on February 2, 1900, plaintiff's said motion for change of place of trial was by the court overruled, on the ground that said motion was filed too late, and after said cause had been called and ready for hearing to a jury; that said cause had been called for trial at the beginning of said term, on January 8, 1900, and then passed until later to allow counsel for plaintiff therein to attend the supreme court, and had been called later in the term, and then passed again, until the trial of other causes; though the case had been thus called at different times during the term, the jury to try the same was not called and impaneled until the morning of the day after the filing of said motion, and immediately after same was overruled.” This statement must be accepted as a verity. Code, § 3506, expressly provides that no such application shall be allowed after a continuance. See, also, Finch v. Billings, 22 Iowa, 228. Moreover, such an application is to be decided by the judge according to the very right and merits of the matter. Code, § 3505. The judge was warranted in considering his own knowledge and convictions, and his ruling was so largely discretionary that we will not interfere. Garrett v. Bicklin, 78 Iowa, 115, 42 N. W. 621. Section 3507 of the Code, relied upon by appellant, merely fixes the place of trial, when the change is granted, and does not in any manner qualify section 3505.

3. Hyatt, trustee, was a mortgagee of the property, and it is claimed that his intervention constituted an election, binding on the mortgagor, and that, as he (Hyatt) was defeated, intervener cannot recover, or, at least, that Hyatt's intervention was binding on the owner of the property, and it cannot be heard to intervene. There is no merit in this contention. A...