Tootle, Hosea & Co. v. Taylor
| Decision Date | 23 October 1884 |
| Citation | 21 N.W. 115,64 Iowa 629 |
| Parties | TOOTLE, HOSEA & CO. v. TAYLOR ET AL., GARNISHEES |
| Court | Iowa Supreme Court |
Appeal from Adair Circuit Court.
THE plaintiff procured a judgment against one Harshaw, and caused the defendants to be garnished as his debtors. The answers of the garnishees were controverted by the plaintiff, and there was a trial before a jury. The court directed the jury to return a verdict for the defendants, which they did, and judgment was rendered thereon. The plaintiffs appeal.
AFFIRMED.
Gow & Hager, for appellant.
Grass & Story and Willard & Hopper, for appellees.
We have before us in this case what is intended to be an abstract. It contains two hundred and twenty-eight pages of printed matter. The questions propounded to the witnesses and answers thereto are set out in full, and also the arguments of counsel, and what was said by the court in relation to the admission of evidence when objections thereto were made.
Two invoices of the same stock of goods are set out at length showing all the various articles composing the stock. In addition to this, the writs of attachment and service thereof, and other writings which are wholly immaterial, are set out at length. The total disregard of the rules of this court, shown in the preparation of this supposed abstract, we are enabled to say, is unprecedented and exceptional. Some of us, however, are almost persuaded that the motion of appellees to strike it from the files should be sustained and the submission set aside, and appellant directed to prepare an abstract as provided by the rules of this court. After much reflection, we have concluded not to do so, but reserving to ourselves the right to disregard our present course as a precedent, should other cases like it come before us, which, however, is not probable. The facts necessary to be stated we understand to be substantially as follows: The garnishees denied being indebted to the judgment debtor, and also denied that they had in their possession or under their control any of his property, rights or credits. One of them at least, set up the facts under which the garnishees took possession of a stock of goods belonging to the judgment debtor, and proceeded to sell them. Substantially, these facts are that the judgment debtor executed a mortgage on the goods to one Garner, and subsequently he executed other mortgages to other parties. One of the garnishees purchased the Garner mortgage, and was appointed the agent of the other mortgagees, who had taken possession of the goods under their mortgages. The goods were sold thereunder, and the proceeds applied to the payment of the Garner mortgage and expenses, and the residue in payment of the other mortgages.
I. It is insisted that the garnishees had no right to appropriate the proceeds of the goods to the payment of any of the mortgages other than the one given to Garner. It is claimed that such mortgages are void under the following statute: "If any mortgagor of personal property, while his mortgage of it remains unsatisfied, willfully destroy, conceal, sell, or in any manner dispose of, the property covered by such mortgage, without the consent of the then holder of such mortgage, he shall be deemed guilty of larceny, and be punished accordingly." Code, § 3895.
The argument of counsel for appellant, in substance, is, that "contracts made in violation of law, or upon an illegal consideration, or which have for their object anything which is repugnant to the common law, or contrary to the provisions of the statute, are void." Marienthal v. Shafer, 6 Iowa 223.
It has been held that contracts made on Sunday are void. But the statute so declares. Both parties are within the prohibition; but it will be conceded that the general rule is that, where a penalty is prescribed by statute, prohibition is implied. This, however, is not always the case, and it is proper to ascertain the nature and object of the statute in order to determine whether the penalty imposed was designed to render the contract absolutely void. The statute under consideration was enacted as a protection to the mortgagee, to the end that he could rely with confidence on the sufficiency of his security, and yet stipulate in the mortgage that the possession of the property should be retained by the mortgagor. Therefore, the penalty was imposed on the latter only. A subsequent mortgage or sale of the property is not declared void, for the reason, we may suppose, that the mortgagor has an equity of redemption which he may sell, and, if he may do this, we see no reason why he may not execute a mortgage which will cover such interest.
If the statute is literally construed, he would be liable to the penalty, although he sold the property for the express purpose of paying the debt, if the sale was made without the consent of the mortgagor; and this is true, even if he tendered the money in payment of the debt. Such cannot be the true construction of the statute. Under it, the mortgagor may fully use and...
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