Union County Inv. Co. v. Messix

• Decision Date: 18 October 1911
• Citation: 132 N.W. 823,152 Iowa 412
• Parties: UNION COUNTY INVESTMENT COMPANY, Appellee, v. MRS. M. V. MESSIX, Appellant
• Court: Iowa Supreme Court

132 N.W. 823

152 Iowa 412

UNION COUNTY INVESTMENT COMPANY, Appellee, v. MRS. M. V. MESSIX, Appellant

Supreme Court of Iowa, Des Moines

October 18, 1911

Appeal from Plymouth District Court.--HON. WM. HUTCHINSON, Judge.

APPEAL from an order overruling defendant's motion to discharge an attachment and release a garnishment had under the attachment. Affirmed.

Affirmed.

W. T Kidd and Struble & Struble, for appellant.

McDuffie & Keenan, for appellee.

OPINION

DEEMER, J.

On March 7, 1910, plaintiff brought action in the district court of Plymouth county against the defendant and her husband, M V. Messix, to recover a balance claimed to be due for merchandise sold and delivered to the defendants. Upon an allegation that defendants were nonresidents of the state, a writ of attachment issued on the same day, which was immediately served by garnishing the Akron Savings Bank and E. H. Youngstrom, cashier. In the notice of garnishment the garnishees were required to answer at the coming April, 191--, term of court. No notice of the action was served upon either of the defendants until September 9, 1910, when notice was served upon the husband. No notice was served at any time upon Mrs. Messix, but upon April 10 she appeared to the action by attorney, and filed a separate answer and cross-bill. On April 11 she filed a motion to discharge the attachment and garnishment, and on September 27 she filed an amendment thereto, and asked the release of the property held under the garnishment. Again, on October 14, 1910, she filed another amendment to her motion to discharge the attachment, etc. The motion with its amendments was submitted to the court upon affidavits and other documentary evidence at the September, 1910, term of the district court, and on the 15th day of October of that year was overruled. The appeal is from this ruling.

It appears that the original case has never been tried, and that neither of the garnishees has ever made answer to the garnishment. The record shows the following, however, with reference to the property in the hands of the garnishees: About March 1, 1909, the defendant's husband executed a note to the Akron Savings Bank, garnishee, for the sum of $ 250, which note he secured by mortgage upon all the live stock and farm machinery owned by him. This note having become due, the bank began pressing the husband for payment some time in January of the year 1910. We now copy from an affidavit made in support of the motion the following:

That after removing to Iowa this affiant on or about the 1st of March, 1910, visited the said Akron Savings Bank to see about said mortgage indebtedness, and that at said time in a conversation with one C. G. Brady, cashier of said bank, the said Brady gave the affiant to understand that he desired the payment of said note, and suggested to this affiant that the property be sold for the purpose of paying this mortgage debt, and, further, that said C. G. Brady said, in substance, to this affiant that she would have to have a sale of said property for this purpose, whereupon and solely by reason of the foregoing facts, and the understanding that, unless she consented to a sale, she would have to submit to a foreclosure of said mortgage, she made arrangements for the sale of said property on one of the public streets of Akron, Iowa and said property was sold at public sale on the 5th day of March, 1910, the said Akron Savings Bank, by E. H. Youngstrom, an employee of said bank, being in charge of said sale and taking and receiving cash and proceeds of said sale, which proceeds said bank has, as affiant is informed and believes, ever since held in its possession; that said sale was not a voluntary one on behalf of this affiant, but was had by her solely because of the understanding that said Akron Savings Bank must be paid for the mortgage debt of her husband to said bank; that there was realized from said sale about the sum of $ 400, the exact sum this affiant can not state, and that there remains in the hands of said bank the sum of about $ 116 above the indebtedness and interest due said bank at the time of said sale.

As a matter of fact, there remained in the bank after the payment of the husband's indebtedness the sum of $ 121, which was held for defendant's husband. Defendant practically admits that the chattel mortgaged property did not belong to her, but she claims that the balance of the proceeds thereof, now in the hands of the garnishee bank is exempt to her because of the following facts: Prior to March 3, 1910, she resided with her husband and five minor children in the state of South Dakota, just across the Sioux river from the town of Akron, in Plymouth county, Iowa; on the 9th day of November, 1909, her husband was by the proper authorities of Union county, S. D., adjudged insane, and was thereupon confined in the hospital for the insane at Yankton, S. D.; about the 8th day of December, 1910, he escaped from said institution, and returned home, and on the 25th day of February he was again returned to the hospital for the insane at Yankton, S. D., where he has ever since been confined. Defendant and her children were compelled to vacate the farm in Union county, S. D., occupied by herself and family as tenants on March 1, 1910, because of the expiration of their lease, and on the 3d day of March, 1910, defendant, with all of her children, removed to Plymouth county, Iowa with the intention and purpose of making a permanent residence in said county and state. Defendant also stated in her affidavit that since her husband was adjudged insane she has been the head of the family, and that the money in the bank is exempt to her as such. She further stated that she was keeping house in the town of Westfield, in this state, and that she and her children old enough to work were engaged in manual labor, and thus supported the family. Defendant also moved to discharge the garnishment and release the property because the garnishees were not notified to appear and answer on the first day of the term following the notice to them or at any other time, for the reason that no notice of the issuance or service of the writ of attachment has ever been served upon either defendant, and that no judgment has ever been rendered against either of them. The statutes of South Dakota were also introduced in evidence to show that under the laws of that state a married woman is not liable for goods or merchandise of any kind sold or delivered to the husband. It is upon this record that we are asked to reverse the order of the trial court, overruling the motion to discharge the attachment and release the garnishees.

I. We shall first consider the technical grounds relied upon. The record shows that defendant, M. V. Messix, was served with notice of the original action, and in this notice he defendant, was notified that a writ of attachment was asked on the ground that he and his codefendant were nonresidents of the state. The notice of garnishment contained this statement: "And you are also notified that you are required to appear on the first day of the April term of the district court of Plymouth county, Iowa which will commence the 4th day of April, A. D. 190 , wherein said cause is pending, and answer such questions as may then and there be propounded to you, or you will be liable for the entire judgment which the plaintiff eventually obtains against the defendant." It will be noticed that the blank following the figures "190" was not filled out. Defendant contends that the attachment should have been discharged and the garnishees released for this reason and for the other reasons heretofore stated. The garnishees have made no appearance, their answers have not been taken, and no judgment has been taken against them or against either of the defendants to the main action. The garnishees are not asking to be discharged, nor is any appearance made for the husband who was the owner of the property. In Phillips v Germon, 43 Iowa 101, it is held that notice of attachment by garnishment need not be given to the defendant in the principal action, and in the same case it is said: "The petition shows that one or more terms intervened between the service of the garnishment process and judgment against the garnishee. The intervener insists that this amounted to an abandonment of the proceedings. But it can not be so regarded. The proceedings were not in fact abandoned, for judgment was rendered in the cause. Of its pendence the whole world is to be regarded...