W. A. Jordan Co. v. Sperry Bros.
| Decision Date | 15 February 1909 |
| Citation | 119 N.W. 692,141 Iowa 225 |
| Parties | W. A. JORDAN CO. ET AL. v. SPERRY BROS. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; Henry Bank, Jr., Judge.
Creditors' bill to subject certain property to the payment of judgments against Sperry Bros. The trial court dismissed the petition, and plaintiffs appeal. Affirmed.John L. Benbow, for appellants.
Herminghausen & Herminghausen, for appellees.
Each of the plaintiffs obtained several judgments against Sperry Bros., George K. Sperry and Grant E. Sperry. The Jordan Company and the Durand & Kasper Company sued out executions on their judgments, and thereunder defendants herein, Mrs. Lou Farris, Berberet Bros., and H. Einspanjer & Son, were garnished on or about November 7, 1904, and notified to appear at the January term, 1905, of the district court of Lee county. Pursuant to notice, they appeared, but their answers were not taken. On November 19th the two plaintiffs last above named commenced this suit which they denominate a creditors' bill against all the defendants above named. This suit was commenced in the district court of Lee county, and in the petition it was alleged that a certain chattel mortgage made by the Sperrys on or about January 6, 1904, to Mrs. Lou Farris upon a stock of merchandise was invalid because withheld from record by agreement until October 21, 1904, and then recorded, and that it was withheld for the purpose of inducing others to give credit to the Sperry Bros. It was also alleged that Sperry Bros. had transferred their books of account to Einspanjer & Son for the purpose of hindering, delaying, and defrauding their creditors. It was also pleaded that Berberet Bros. had possession of a certain delivery wagon covered by the mortgage to Lou Farris, and that plaintiffs' rights thereto were superior to those of said defendants. Defendants answered, denying the allegations of the petition. Plaintiffs thereupon moved the court to require defendants to more fully answer the petition, claiming that they had not complied with section 4088 of the Code. They also moved for judgment because of the want of sufficient answers. These motions were both overruled, and thereupon plaintiffs filed a motion for change of place of trial or for a hearing before another judge. This motion was submitted and denied. Thereafter, and on October 21, 1905, plaintiff W. L. Gerber came into the case by leave of court, joining with the other plaintiffs in the relief demanded, and pleading a judgment obtained by him against Sperry Bros. and the individual members of the firm on February 23, 1905. He also pleaded that he had garnished the defendants Farris, Berberet Bros., and H. Einspanjer & Son, and that these garnishees had answered, denying that they were indebted to Sperry Bros. or the firm. He also repleaded the matters stated in the original petition filed in the case. Defendants answered the petition of Gerber, denying most of the allegations thereof and pleading a former adjudication growing out of the garnishment proceedings which they said had proceeded to judgment in their favor. Plaintiffs then replied, denying any former adjudication. Upon these issues the case was tried to the court, resulting in a decree finding that the plea of former adjudication as to W. L. Gerber was good, that plaintiffs' petition be dismissed, and that plaintiffs pay the costs of the proceeding. Whilst the action is in equity and is triable de novo, some errors are assigned which must be considered before we go to the real merits of the controversy.
1. It is argued that plaintiffs' motion to strike the defendants' answer, which was simply a general denial, should have been sustained, and that the court should have required a full discovery from them as required by section 4088 of the Code, which reads as follows: The exact point made here is that the trial court was in error in not striking defendants' answer from the files. Whilst the statute requires such answers as the court may direct, the remedy for failure to make them is not by motion to strike, but to require full and explicit discoveries by process of contempt. If an answer be informal, redundant, or otherwise, so long as it tenders an issue, the remedy is not by motion to strike, but for more specific statement or by demurrer. Code, §§ 3575, 3617, 3630. Walker v. Pumphrey, 82 Iowa, 487, 48 N. W. 928. The matter of striking a pleading is so much within the discretion of the trial court that generally an appeal will not lie from such ruling. Allen v. Church, 101 Iowa, 116, 70 N. W. 127;Allen v. Cook (Iowa) 71 N. W. 534.
2. The motion for change of venue was bottomed upon prejudice of the district judge. No such abuse of legal discretion is shown in the ruling denying the change as to justify our interference. Petty v. Hayden, 115 Iowa, 212, 88 N. W. 339.
3. One of the main questions in the case is the correctness of...
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