Sperry v. Gallaher

• Decision Date: 01 February 1889
• Citation: 77 Iowa 107,41 N.W. 586
• Parties: SPERRY ET AL. v. GALLAHER.
• Court: Iowa Supreme Court

77 Iowa 107

41 N.W. 586

SPERRY ET AL.

v.GALLAHER.

Supreme Court of Iowa.

Feb. 1, 1889.

Appeal from district court, Greene county; J. P. CONNER, Judge.

On the 22d day of February, 1888, the plaintiffs commenced an action against one Speers upon an account for goods sold. An attachment was sued out, and J. A. Gallaher, the appellant, was garnished. Judgment was rendered against Speers, and the answer of appellant garnishee was taken in open court, and, on motion of the plaintiffs, judgment was rendered against him for the amount of the judgment, and costs against Speers. The garnishee appeals.Timothy Brown, for appellant.

Lehman & Park, for appellees.

ROTHROCK, J.

It appeared by the answer of the garnishee that on the 8th day of February, 1888, Speers made a general assignment of his property to Gallaher, the garnishee, for the benefit of his creditors. In the examination of the garnishee the assignment was produced. It was claimed by the plaintiffs to be void upon its face, and, as it was conceded that the garnishee was in possession of a large amount of the property of Speers, which he held by virtue of the assignment, it was claimed that judgment should be rendered against the garnishee. The court sustained the claim made by the plaintiffs, and rendered judgment accordingly.

The assignment was general. It embraced all of the debtor's property, except such as was exempt from execution. It was duly acknowledged and recorded, and Gallaher, the assignee, accepted the trust, and was proceeding to carry it out, when he was garnished. The instrument, after providing for the sale of the property under the direction of the district court, and the collection of the assigned accounts and choses in action, made the following provision as to the payment of creditors: “To pay over to my creditors of my estate who have filed and proved their claims as provided by law, and under the direction of the court, a pro rata share to each, equal in amount due them, at the same rate per cent., if less than the full sum due to them or each of them. In case that any of my creditors who file claims against my estate, and receive a dividend therefrom, do not receive the full amount due them, then the receipt of any just pro rata share of the amount due them shall be deemed a satisfaction of the demand, and so by them accepted.” This provision or condition in the assignment plainly requires the creditors who file claims to accept a pro rata share of the estate in full satisfaction of their demands. It seems to us it will bear no other construction. Counsel for appellant contends that the receipt required is not to be in satisfaction of the whole debt, but only as against the assignee. In other words, it is...