Poole v. Putensen
| Decision Date | 24 January 1979 |
| Docket Number | No. 61572,61572 |
| Citation | 274 N.W.2d 277 |
| Parties | Ernest A. POOLE, Appellant, v. Arnold PUTENSEN and Roger Swasand, Appellees. |
| Court | Iowa Supreme Court |
Morris C. Hurd of Hurd & Donahue, P. C., Ida Grove, for appellant.
Richard F. Branco of Branco, Boerner & Renegar, Holstein, for appellees.
Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, HARRIS and ALLBEE, JJ.
The question before us is whether the trial court correctly sustained the motions to dismiss and to adjudicate law points of defendants Arnold Putensen and Roger Swasand in this action by plaintiff Ernest A. Poole for wrongful attachments.
In his petition Poole alleged that he was president, manager, and sole stockholder of Crawford Elevator Company, Inc.; that the Elevator experienced financial difficulties and ceased operations, and all its assets were in the hands of its bonding company and the Iowa Commerce Commission which were liquidating the assets in an orderly fashion to pay creditors; that defendants commenced separate actions against the Elevator, and attached real and personal property owned by the Elevator on the allegation that it was about to convert its property into money for the purpose of placing its assets beyond the reach of creditors; that the Elevator never attempted to place its property beyond reach of creditors, and the attachments were wrongful; that the attachments halted the orderly liquidation, caused the Elevator to petition for receivership, brought about spoilage and loss of grain due to lack of protection and security by defendants, and occasioned legal fees and additional interest; that Poole contracted with the Elevator's bondsman to hold it harmless on the bond; that as a result of defendants' acts the bondsman paid tens of thousands of dollars to creditors; that the bondsman has notified Poole it will look for complete reimbursement; and that defendants acted with malice. Poole prayed for $80,000 actual and $40,000 exemplary damages, and demanded jury trial.
Defendants filed a document entitled "Motion to Dismiss and Answer and Motion to Adjudicate Law Points". The motion to dismiss, designated "Division I" of the document, contained two paragraphs. Paragraph 1 asserted that Poole was not the real party in interest for the reason that in the two actions against the Elevator by Putensen and Swasand, the Elevator counterclaimed for wrongful attachments, the Elevator's receiver was substituted for the Elevator as defendant, and subsequently in the receivership proceedings the equity court ordered the receiver to dismiss the counterclaims without prejudice. Paragraph 2 asserted that Poole's petition did not state a claim on which relief could be granted because Poole had not paid the Elevator's bondsman anything. Defendants therefore moved to dismiss the petition.
The answer of Putensen and Swasand contained two divisions designated "Division II" and "Division III". Division II admitted and denied various allegations of Poole's petition and prayed that the petition be dismissed. Division III affirmatively alleged that Putensen and Swasand commenced their previous actions against the Elevator to recover for grain they sold, obtained writs of attachment, and attached Elevator property; that at the time the Elevator had a shortage of grain and was therefore in the control of the Commerce Commission, the Crawford Elevator Company, Inc. was selling its other elevators, the Elevator at Crawford had issued a great many insufficient funds checks, Poole was negotiating to sell his home and was absent much of the time, and the grain shortage was highly publicized; that in the previous actions of Putensen and Swasand the Elevator counterclaimed for wrongful attachments; that the Elevator was placed in receivership and its receiver was substituted for it in the previous actions; that subsequently in the receivership proceedings the equity court ordered the receiver to dismiss the counterclaims without prejudice on finding probable cause for the writs of attachment, frivolousness, no reasonable probability of success, and unfair defense expense to Putensen and Swasand; and that such receivership order is res judicata. Defendants prayed for dismissal of the petition.
Defendants' motion to adjudicate law points was designated "Division IV". In it defendants moved the court to adjudicate the law points raised in divisions I (motion to dismiss) and III (the division of the answer averring res judicata).
Poole filed a reply which is not involved here.
The trial court held a hearing on the motions to dismiss and to adjudicate law points, and entered this order:
Above motions argued and submitted by above counsel on 12-12-77. The substance of Plaintiff's claim is an allegation of wrongful attachment giving rise to a demand for indemnity. Plaintiff's claim for indemnity will not accrue or become enforceable until Plaintiff's own legal liability to (the Elevator's bondsman) becomes fixed or certain, as in the entry of a judgment or a settlement. See Vermeer vs. Sneller, 190 N.W.2d 389 (IOWA 1971). The pleadings show that Plaintiff's claim for indemnity has not accrued. Accordingly, it is Ordered that the Petition is dismissed at Plaintiff's costs. Other matters submitted are moot. Clerk notify counsel.
Poole thereupon appealed to this court.
At the threshold we confront a point of procedure which Poole raises. This is not a case in which the parties by agreement present a problem in their own way notwithstanding the rules of procedure. Poole stands on the rules and insists on their application.
The motion to dismiss was founded on (1) Poole's not being the real party in interest and (2) Poole's failing to state a claim in view of his not having paid the bondsman anything. The motion to adjudicate by reference asked for a determination of those two points. It also asked (3) for an adjudication on res judicata (raised in division...
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Ohlen v. Harriman
...N.W.2d 413, 416 (Iowa 1978) (citations omitted). I. The appellant urges the Court to broadly read the recent decision in Poole v. Putensen, 274 N.W.2d 277 (Iowa 1979). He construes Poole to stand for the proposition that a motion may not have as its basis a ground set forth in a prior and o......
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Walker Shoe Store, Inc. v. Howard's Hobby Shop, 67361
...I and II and a motion to dismiss count III, all as part of the same instrument. Relying principally on the case of Poole v. Putensen, 274 N.W.2d 277, 279 (Iowa 1979), the trial court held that the motion was not timely because it was not filed before answer. See Iowa R.Civ.P. Defendant argu......
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Marriage of Glade, In re
...to dismiss and answer were filed at the same time, the supreme court has found the motion to dismiss was untimely. Poole v. Putensen, 274 N.W.2d 277, 279 (Iowa 1979). In response to the defendant's argument concerning judicial economy, the court stated it could not ignore the plain language......