Sioux Falls Broadcasting Ass'n v. Henry Field Co.

• Decision Date: 18 January 1938
• Docket Number: 44082.
• Citation: 277 N.W. 284,224 Iowa 655
• Parties: SIOUX FALLS BROADCASTING ASS'N v. HENRY FIELD CO. (READ, Garnishee).
• Court: Iowa Supreme Court

277 N.W. 284

224 Iowa 655

SIOUX FALLS BROADCASTING ASS'N v. HENRY FIELD CO. (READ, Garnishee).

No. 44082.

Supreme Court of Iowa.

January 18, 1938

Appeal from District Court, Page County; Grover W. Brown, Judge.

Appeal from an order dismissing a garnishee. The defendants appellees, file a motion to dismiss. Appeal dismissed.

Ferguson & Ferguson, of Shenandoah, for appellant.

Keenan, Clovis & Sar, of Shenandoah, for appellees.

STIGER, Justice.

In June, 1936, the Sioux Falls Broadcasting Association appellant, obtained a judgment against Henry Field Company in the district court of Page county for $5,623. In an action brought in said court by Elbert A. Read as trustee against Henry Field Company to foreclose a trust deed securing notes in the sum of $170,000, Elbert A. Read was appointed receiver. Notice of garnishment was served on the receiver under execution issued on the judgment in favor of the broadcasting association. Before a hearing was had in the garnishment proceedings the receiver filed a motion to dismiss the garnishee primarily on the ground that the property in his possession was in custodia legis and that the receiver, being a representative of the court, was immune from garnishment. The judgment creditor, the broadcasting association, filed a resistance to the motion, one of the grounds of which was that the motion was premature and that the district court should not rule on the motion until the Sioux Falls Broadcasting Association had an opportunity to examine the garnishee as provided by law and controvert the answer.

On April 9, 1937, the trial court sustained the motion and dismissed the garnishee. On April 30, 1937, 21 days after the discharge of the garnishee, the broadcasting association perfected an appeal from said order. On July 31, 1937, the receiver filed a motion to dismiss the appeal because of the failure of the appellant to comply with Code, § 12141, which reads: " 12141. Perfecting appeal from order of discharge . When an attachment has been discharged, if the plaintiff then announces his purpose to appeal from such order of discharge, he shall have two days in which to perfect his appeal, and during that time such discharge shall not operate to divest any lien or claim under the attachment, nor shall the property be returned, and the appeal, if so perfected, shall operate as a supersedeas thereof."

Under the provisions of this section, the garnishing creditor must announce his purpose to appeal from the order of discharge at the time the order is made and if he does so he shall have 2 days in which to perfect his appeal. Appellant did not comply with either requirement. The time in which an appeal must be taken is a jurisdictional fact. The failure of appellant to comply with the mandatory requirements of this statute is fatal to its appeal. Woods v. Brown, 207 Iowa 944, 223 N.W. 868; Hoyer v. Jordan, 208 Iowa 1256, 224 N.W. 574; McLaughlin v. Hubinger Bros. Co., 135 Iowa 595, 113 N.W. 475.

Appellant, however, claims that, because of the following proceedings had in the receivership in the foreclosure action, the receiver is estopped to claim that appellant failed to properly perfect the appeal and waived compliance with the statute, and thus seeks to avoid the effect of its failure to comply with the imperative demands of the statute.

On May 1, 1937, appellant filed an application in the foreclosure suit for an order directing the receiver to withhold sufficient funds to pay the judgment on which the garnishment proceedings are based and costs until the appeal was determined. The court fixed a time and place of hearing on the application, notice was given the receiver, and on May 25, 1937, an order was entered requiring the receiver to retain the funds as prayed. The order recites that the receiver was represented at the hearing by counsel. The receiver did not file a resistance to the application.

The position taken by appellant is that the order amounted to an adjudication of the existence of appellant's rights in the funds by virtue of its garnishment in the event that it should...