Swanson Automobile Co. v. Stone

• Citation: 174 N.W. 247,187 Iowa 309
• Decision Date: 14 October 1919
• Docket Number: 33120
• Parties: SWANSON AUTOMOBILE COMPANY, Appellee, v. E. B. STONE et al., Appellants
• Court: United States State Supreme Court of Iowa

174 N.W. 247

187 Iowa 309

SWANSON AUTOMOBILE COMPANY, Appellee, v. E. B. STONE et al., Appellants

No. 33120

Supreme Court of Iowa, Des Moines

October 14, 1919

Appeal from O'Brien District Court.--WILLIAM HUTCHINSON, Judge.

ACTION in equity in the nature of a creditor's bill to subject certain real estate to the payment of judgments rendered against the defendant E. B. Stone. Decree for plaintiff, as prayed, and defendants appeal.

Reversed.

O. H Montzheimer, for appellants.

R. J Locke and McCulla & McCulla, for appellee.

WEAVER J. LADD, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

WEAVER, J.

It appears that the defendant E. B. Stone had become indebted to a considerable number of persons. The claims against him were, for the most part, quite small, but, small as they were, they were too great for his ability to pay, and he had no visible assets subject to execution.

In September, 1916, his mother died, leaving him heir to an undivided fraction of a small tract of land, a state of affairs which naturally awoke the interest, if not the enthusiasm, of his creditors, and soon thereafter, the local constables were made busy serving original notices upon the unfortunately fortunate debtor. The claims were reduced to judgment in justice's court, and transcripts were in due course filed in the office of the clerk of the district court. Before this had been done, however, Stone had sold and conveyed his interest in the property to W. J. Kennedy, a brother-in-law; and before this action was begun, Kennedy had sold and, by written contract, had agreed to convey the same to one Oldhausen, who does not appear to have been made a defendant herein.

In November, 1917, this action was begun in the name of the Swanson Automobile Company, which appears to be the trade name under which one Solomon Swanson is doing business. The petition alleges, first, that plaintiff owns a judgment returned in his favor against Stone for $ 15 and costs. In other and separate paragraphs are described four other judgments, rendered in favor of persons other than plaintiff, but alleging, in each instance, that the same had been assigned to him by the judgment plaintiff, that all are unpaid, and that Stone is without property or assets which can be subjected to their payment.

Plaintiff further alleges that the conveyance by Stone was made to hinder, delay, and defraud his creditors; that such fraudulent purpose was well known to Kennedy, who made the purchase for a grossly inadequate consideration. It is, therefore, prayed that the conveyance be set aside, and the property subjected to the payment of said judgments.

The defendants deny the allegations of the petition, except the fact of the rendition of the judgments.

I. It appears without dispute that the real or family name of the plaintiff is Solomon Swanson, and that he is doing business as "Swanson Automobile Company," the name in which this suit is brought. Appellant makes the point that the action, not being brought in the name of the real party in interest, should be dismissed. The objection is not well taken. Under the law of this state, a man may lawfully adopt any trade name in which to conduct his business, and, so long as it is not made a cover or means of fraud, he may sue or be sued by such designation. Enslow & Son v. Ennis, 155 Iowa 266, 135 N.W. 1105.

II. It is further objected that, in so far as plaintiff's claim is based upon the several judgments alleged to have been assigned to him, the evidence is insufficient to support a decree for the relief prayed. This objection appears to be well made; for, while it may be regarded as proved, --indeed, it is admitted,--that such judgments were duly entered against the defendant Stone, the record is without any competent evidence that plaintiff has any right, title, or interest therein, or authority from the judgment plaintiffs to sue for the relief demanded. Lest question be made of the accuracy of this statement, we quote the evidence complete and verbatim as it appears in the abstracts, as follows:

"Solomon Swanson, called on behalf of the plaintiff and duly sworn, testified as follows: 'I am plaintiff in this action, doing business under the name of the Swanson Automobile Company; reside at Cherokee, Iowa. Q. Now, Mr. Swanson, did you ever have any agreement with the attorneys for other creditors in this action about bringing the action in your name? (Defendants object as incompetent, immaterial, and irrelevant. Court: Ruling reserved. Defendants except.) A. Yes, sir. Q. What was that agreement? (Defendants make same objection, and for further reason that it's not shown the attorneys were authorized to make any agreement in regard to bringing the action. Court: Ruling reserved. Defendants except.) A. Well, I don't know as to the agreement, only that they wanted me to be defendant in the case. This debt to me was first contracted November 1st, 1915; I made attempts to collect it, and it is still unpaid. I have not any written assignments of these judgments, and did not have any written assignments of these judgments.'"

"W. P. McCulla, called on behalf of plaintiff, duly sworn, testified as follows: 'I am an attorney at Cherokee, Iowa; the judgments referred to in the petition, and marked Exhibits B, C, D, and E, were not assigned, to my knowledge, by the plaintiffs of those judgments to the plaintiff in this action. There were assignments in writing by someone representing them. Q. Who were those assignments made by? (Defendants object to all this testimony as not the best evidence, and as incompetent, immaterial, and irrelevant. Court: Ruling reserved,--proceed. Defendants except.) A. Molyneux & Maher for Mrs. Carrie Billings, and by myself as attorney for Metcalf & Cannon and for Sarah Pratt. These assignments were in my possession, and I don't know where they are now. I have made diligent search for them, but not as thoroughly as I would have done had I known what I know today. I looked in my files yesterday for them, and could not find them, and supposed they were here with Mr. Locke; and I find, on coming here, that they are not here; but they were not in my files where I had them. Q. State whether they were made before or after this action was begun. (Defendants object as not the best evidence, incompetent, irrelevant, and immaterial, and it appearing that the assignments were made by the attorney, and it not being shown that the attorney had any authority to make the assignments. Court: Ruling reserved. Defendants except.) A. They were made before. Q. You knew that those--did you know as to whether the persons who executed the assignments--had those persons had authority so to do? (Defendants object as immaterial, leading, and suggestive. Court: Ruling reserved. Defendants except.) A. I know I had authority in the Metcalf & Cannon and Pratt judgment personally to execute the assignments, and Molyneux & Maher sent me the assignment later, saying that they would--(Defendants object as incompetent, immaterial, and irrelevant, and not the best evidence as to what Molyneux & Maher said. Court: Ruling reserved. Defendants except.) Q. Do you know who owns those judgments now? A. Yes. Q. Who is it? (Defendants object as incompetent, immaterial, and calling for a conclusion, and not best evidence. Court: Ruling reserved. Defendants except.) A. Solomon Swanson. Q. What relation is he to the plaintiff in this case? A. He is the same party who does business under the name of the Swanson Automobile Company. Q. Has he held those judgments since before this case begun? A. Yes, sir. (Defendants make same objection; ruling reserved by court.)'"

"Cross-examination. I had the assignments in my safe; thought I had sent them to Mr. Locke, when I didn't find them in the files yesterday. They may be in my safe. I don't think they are in my office, because I had them with my files. I have been away from home some time, returned Saturday night, and searched for the assignments yesterday for about ten minutes. We looked through the files in Mr. Locke's office, and could not find them. I could not go through all the files in my office in ten minutes,--not all the files; they may be in my files yet--misplaced--it might be possible. Q. You say Solomon Swanson is the sole owner of the business conducted under the name of the Swanson Automobile Company? A. This is my understanding, --yes, sir. Q. And all of these judgments that are mentioned in this petition, except the one of the Swanson Automobile Company, you say have been assigned? A. Yes, sir. Q. By the attorneys for the plaintiffs in each case? A. Yes, sir. Q. To whom? A. Swanson Auto Company, for the purpose of this suit."

It would seem to need no argument or array of authorities to demonstrate the utter insufficiency of this showing. It may well be conceded that an assignment of these judgments to plaintiff, wholly without consideration, and for the mere purpose of having the suit prosecuted and collection of the judgments enforced in his name would not be any defense to such action; for, in such case, the judgment plaintiffs would doubtless be bound by the adjudication. But even if this be true, it is still the right of the defendants to insist that there be some competent showing that such assignments were made, or at least some evidence from which assignments may be inferred or presumed. Nothing of that kind is here shown. True, we have the testimony given by one of plaintiff's counsel, in which he says, "There were assignments in writing," not made by the judgment plaintiffs, but by their counsel....