Starry v. Korab

Decision Date08 December 1884
Citation21 N.W. 600,65 Iowa 267
PartiesSTARRY v. KORAB, GARNISHEE
CourtIowa Supreme Court

Appeal from Cedar Rapids Superior Court.

THIS is an appeal from an order in a garnishment proceeding discharging the garnishee. Plaintiff obtained judgment against one Joseph Lustick, on which execution issued, and appellee was garnished as a supposed debtor of the defendant in execution. At the proper time he appeared, and answered that he was not indebted to said Lustick in any sum, and that he did not have any property in his possession belonging to him. Plaintiff filed a pleading controverting this answer, in which it is alleged that, in a conversation had between plaintiff and garnishee before the execution was issued garnishee stated that he was indebted to Lustick in a certain sum, and that he would not pay the same to Lustick until plaintiff had an opportunity to procure the issuance of an execution on said judgment, and serve notice of garnishment on him thereunder; and that, relying on this representation and believing it to be true, plaintiff, at great expense and trouble to himself, procured said execution to issue, and caused the garnishee to be served with notice of garnishment thereunder; and that the garnishee is now estopped by his representation and conduct from denying that he was indebted to Lustick at the time he was served with the notice. The garnishee demurred to this pleading, on the ground that it did not show that he was in fact indebted to Lustick when the notice of garnishment was served, and that the facts averred in the pleading did not create an estoppel. The demurrer was sustained, and, plaintiff declining to plead further judgment was entered discharging the garnishee. Plaintiff appeals.

AFFIRMED.

Blake & Hormel, for appellant.

Bowman & Swisher, for appellee.

OPINION

REED, J.

The purpose of the pleader was undoubtedly to set up in the pleading controverting the answer of the garnishee what is denominated an equitable estoppel. The effect of such estoppel is to preclude the party from asserting a strict legal right, on the ground that his assertion of such right, under the circumstances of the case, would be against equity and good conscience. The pleading assumes that at the time the notice of garnishment was served on the garnishee he was not in fact indebted to Lustick, and that on strict legal grounds he was entitled to be discharged. But the claim is that, having induced plaintiff, by the representation that he was indebted to Lustick, to institute the garnishment proceeding and incur the expense and trouble incident thereto, it would be...

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5 cases
  • Chauncey v. Dyke Bros.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 28, 1902
    ... ... of the agreement. 2 Pom. Eq. Jur. Sec. 808; Bigelow, Estop ... p. 555; White v. Ashton, 51 N.Y. 285; Starry v ... Korab, 65 Iowa, 267, 269, 21 N.W. 600; Railroad Co ... v. Barnes, 64 F. 80, 82, 12 C.C.A. 48, 50 ... A false ... ...
  • Hustad v. Reed
    • United States
    • Montana Supreme Court
    • February 17, 1958
    ...to the garnishor before the proceedings that he was so indebted. Warner Glove Co. v. Jennings, 58 Conn. 74, 19 A. 239; Starry v. Korab, 65 Iowa 267, 21 N.W. 600; Sears v. Thompson, 72 Iowa 61, 33 N.W. 364; Miller v. Anderson, 19 Mo.App. 71; Phillipsburgh Bank v. Fulmer, 31 N.J.L. 52, 86 Am.......
  • Vogel v. Shaw
    • United States
    • Wyoming Supreme Court
    • December 30, 1930
    ... ... to the future. Gjerstadengen v. Hartzell, 83 N.W ... 230; McKinney v. Hindman, 169 P. 93; Starry v ... Korab, 21 N.W. 600; 21 C. J. 1142; Nehls v. Williams ... Co., 184 P. 212; Booth v. Levy, 131 P. 1062; ... Sellers v. Co., 160 P ... ...
  • Brown v. Loewenbach
    • United States
    • Wisconsin Supreme Court
    • January 8, 1935
    ...a promisor, as to which the doctrine of estoppel is not applicable. Martin v. Fox & Wis. Improvement Co., 19 Wis. 552, 559;Starry v. Korab, 65 Iowa, 267, 21 N. W. 600;Allen v. Hodge, 51 Vt. 392, 395;Langdon v. Doud, 10 Allen (Mass.) 433, 436;Jackson v. Allen, 120 Mass. 64, 79;Weidemann v. S......
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