Tuthill Spring Co. v. Smith

• Decision Date: 05 February 1894
• Citation: 57 N.W. 853,90 Iowa 331
• Parties: TUTHILL SPRING CO. ET AL. v. SMITH ET AL., (TEN CASES.)
• Court: Iowa Supreme Court

90 Iowa 331

57 N.W. 853

TUTHILL SPRING CO. ET AL.

v.SMITH ET AL., (TEN CASES.)

Supreme Court of Iowa.

Feb. 5, 1894.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

The Tuthill Spring Company brings this action in equity, and alleges that it is a judgment creditor of the Shaver Wagon Company, an insolvent corporation organized under the laws of Iowa; that at the time of the creation of said indebtedness, the rendition of said judgment, and the commencement of this action, there stood in the name of defendant Smith capital stock of said company in sums of $10,000, no part of which was paid, and in the name of defendant Edgington $600, only half of which had been paid; that the firm of C. Hardin & Sons, of which defendant Smith was a member, held $60,000 of said stock as collateral security, which stock was voted by said firm through said Smith; that defendant Smith caused said stock to be transferred on the books of the company to defendant Herman Dolph, who holds the same for said firm, and that nothing has ever been paid for said stock. The plaintiff the Tuthill Spring Company asks for an accounting with the defendants as to the amount of unpaid stock held by each, and for judgments. The defendant Smith answered, admitting that plaintiff obtained judgment against the Shaver Wagon Company, as alleged, but avers that the same was procured by fraud and collusion; admits that $10,000 of the capital stock of the Shaver Wagon Company stood in his name, but denies that, at the time the indebtedness upon which said judgment was rendered arose, defendant Dolph held any of said stock, but admits that prior to the rendition of said judgment $62,000 of said stock was transferred to said Dolph in trust as collateral security for C. Hardin & Sons and for W. T. Shaver, to be reassigned on payment of the debt for which it was security, and denies that said stock was not paid for. He alleges that W. T. Shaver deposited $60,000 of said stock, assigned in blank, with Hardin & Sons, to secure his indebtedness, of over $20,000, existing at the time of the organization of the wagon company; that on November 1, 1885, he (defendant Smith) filled the blank with the name of Mr. Dolph as trustee, to be held as aforesaid, and that neither he, Hardin & Sons, nor Dolph owned said stock, or had any interest therein, except as security; that said shares were never voted by defendant or Hardin & Sons, and were not voted by Dolph prior to said transfer to him. The defendant Smith states as a further affirmative defense, in substance, as follows: That prior to July 5, 1882, W. T. Shaver was engaged in the manufacture and sale of vehicles, and had built up a large and flourishing trade, and owned a valuable plant and stock of materials and finished work, and patents, which, with the good will, were estimated at $100,000; that on July 5, 1882, the Shaver Wagon Company was incorporated, with a capital stock of $100,000, divided into shares of $100 each; that said Shaver transferred to said corporation all his said property, including book accounts, which was inventoried at $99,400, in consideration for which he received 994 shares of said stock, which, with 6 other shares subscribed and paid for, made up the 1,000 shares; that on the 17th day of July, 1882, certificate No. 21, for 100 shares of said capital stock, paid up as aforesaid, of the par value of $10,000, was issued to said Shaver, and on the same day assigned by him to this defendant as collateral security for indebtedness due Hardin & Sons and this defendant; that on the same day said certificate was surrendered, and certificate No. 24, for 100 shares of fully paid up stock of said company, was issued in lieu thereof to this defendant to complete said security; that, on said 17th day of July, certificate No. 20, for 50 shares, No. 23, for 500 shares, No. 32, for 20 shares, and No. 33, for 50 shares, par value $62,000, were issued to said Shaver as fully paid up stock, and afterwards were deposited by Shaver with Hardin & Sons as collateral security, assigned in blank, and thereafter the blank was filled with the name of Herman F. Dolph, trustee, and transferred to him, as before stated. Smith further avers in detail the facts upon which he relies as showing that the judgment set out in plaintiff's petition was procured through collusion, which allegations will be hereafter noticed. The defendant Joseph Edgington answered, denying that $600 stock of said company stood in his name, or any other amount which had not been paid in full. He admits that $300 of said stock stood in his name, and alleges that the same had been paid for in full. By way of counterclaim, he asks to recover upon a promissory note of the plaintiff for $8,858.52, as will hereafter be more fully noticed. The bill of plaintiff was dismissed as to all the defendants except J. D. K. Smith and Joseph Edgington, and judgments were entered against them in favor of the plaintiff, from which they appeal. Ten actions at law were brought by creditors of the Shaver Wagon Company against J. D. K. Smith, which, upon his motion, and in pursuance of a stipulation, were submitted below with the above-entitled case, and judgment rendered in each case against the defendant Smith, from which he also appeals.Huff & Ward, for appellants.

C. E. Albrook, for appellees.

GIVEN, J.

1. Certain of the plaintiffs in said law actions move to dismiss the appeals therein upon the grounds that the amount in controversy is less than $100, and that no assignment of errors has been made. In the other of said actions the motions are upon the ground, only, that there is no assignment of errors. It is true, as claimed, that in some of those cases the amount claimed is less than $100, and that there is no bill of exceptions or assignment of errors in any of them. The record shows that it was agreed by all the parties, in open court, that each and all of these cases should “be consolidated and tried with No. 5,259, the case in equity.” It also appears that on motion the cause was, without objection, set for hearing on depositions; that depositions were taken with reference to all of said cases; and that they were tried together, as in equity, without objection. The claims of the plaintiffs, though resting upon the same facts as to the liability of the defendant, were separate and independent, and therefore separate judgments had to be rendered; but neither this, nor the allowance of time to file bills of exception, changes the fact that by agreement the cases were consolidated and tried as in equity. Being so consolidated, the amount in controversy in the combined cases exceeded $100; and, having been thus tried in equity below, appellants are entitled to a trial de novo in this court.

2. This case was set for trial on depositions, and it was ordered that plaintiffs have until August 10, 1890, to file depositions; defendants to have until September 20, 1890, and plaintiffs until October 10, 1890, to take rebutting evidence. The depositions in behalf of plaintiffs were not filed until after the dates fixed. On the day the cause was called for trial,--June 23, 1891,--and after two or more terms had elapsed since the filing of depositions, the defendants moved to suppress the depositions because not filed in time. There is no showing of bad faith or prejudice by reason of the delay. If the defendants desired the suppression of these depositions, they should have so moved at one of the preceding terms, so that the depositions could have been retaken, if necessary. See Sweet v. Brown, 61 Iowa, 669, 17 N. W. 44.

3. Plaintiff gave notice to take depositions before N. S. Carpenter, notary public. Defendant Smith appeared in person, and the other parties by their respective attorneys. The notary selected F. E. Brown, a shorthand writer, to take the examination in writing, whereupon defendants made objection as follows: “Here defendants object to the depositions being taken by F. E. Brown in shorthand--First, because the notice was served upon defendants to take the depositions before N. S. Carpenter, notary public, and not before F. E. Brown; second, because F. E. Brown is the clerk of C. E. Albrook, and in his employ, the attorney for the Tuthill Spring Company, the plaintiff ...