Webster City Grocer Co. v. Losey

• Decision Date: 27 January 1899
• Citation: 108 Iowa 687,78 N.W. 75
• Parties: WEBSTER CITY GROCER CO. v. LOSEY ET AL.
• Court: Iowa Supreme Court

108 Iowa 687

78 N.W. 75

WEBSTER CITY GROCER CO.

v.LOSEY ET AL.

Supreme Court of Iowa.

Jan. 27, 1899.

Appeal from district court, Butler county; J. F. Clyde, Judge.

On the 24th day of December, 1894, Losey & Doty, co-partners doing business at Parkersburg, Iowa, executed and delivered a chattel mortgage upon their stock of goods, merchandise, and fixtures, for $3,232.59, to the Beaver Valley State Bank of Parkersburg, Iowa, to secure the payment of a certain promissory note held by the bank against them for that amount, with interest at 8 per cent. The mortgage was filed for record December 26, 1894. On the 27th day of December, 1894, the defendant the Smith, Lichty & Hillman Company sued out a writ of attachment out of the office of the clerk of the district court for Butler county, Iowa, and placed said writ of attachment in the hands of Thomas Walsh, sheriff of said county, for service. The defendant went to Parkersburg on that day to levy said writ of attachment. Before the attachment was levied, the defendant the Smith, Lichty & Hillman Company purchased and took an assignment of the mortgage which the Beaver Valley Bank held upon the stock of goods and merchandise and fixtures of Losey & Doty. Immediately after the Beaver Valley Bank mortgage was assigned to the Smith, Lichty & Hillman Company, it was placed in the hands of the sheriff for foreclosure, and foreclosure of the mortgage was commenced according to its terms. The sheriff took possession of the stock of goods and merchandise under the mortgage, and closed the store. After closing the store under the mortgage, he levied the writ of attachment upon part of the goods, and on that day he served notice of foreclosure by posting written notices in three public places in said county. After foreclosure of the Beaver Valley Bank mortgage was commenced, and the writ of attachment was levied, the defendants executed a chattel mortgage upon their stock of goods and merchandise to the H. Meyer Boot & Shoe Manufacturing Company, to secure payment of a note for $267.20. After the mortgage was executed and delivered to the H. Meyer Boot & Shoe Manufacturing Company, they executed and delivered to the Webster City Grocer Company (plaintiff) a mortgage to secure $168.08. All of those mortgages by their terms were made subject to the Beaver Valley State Bank mortgage, which was assigned to the Smith, Lichty & Hillman Company, and subject to each other. On the same day mortgages were executed to the Williams-Hayward Shoe Company, the Boss Manufacturing Company, John Melhop, Son & Co., and the Cedar Falls Mill Company. All of these mortgages were made subject to each other, and all subject to the Beaver Valley Bank mortgage, which was held by this defendant. The defendant and mortgagee, the H. Meyer Boot & Shoe Manufacturing Company, commenced an action in the district court of Butler county, asking a transfer of the foreclosure of said mortgage to the district court, and presented its petition; and a temporary injunction issued, restraining said sale. Thereafter the said Smith, Lichty & Hillman Company moved to vacate said temporary injunction, and the motion was sustained, the temporary injunction was dissolved, and the sale ordered to proceed as advertised. On the 17th day of January, 1895, the stock of goods was sold at public sale to the Williams-Hayward Shoe Company, the H. Meyer Boot & Shoe Manufacturing Company, and the Rider-Wallis Company. This action is to recover against Losey & Doty on the note held by plaintiff, and the petition shows that the sale under the mortgage was illegal and fraudulent, as not being made upon legal notice, and as being made in pursuance of a conspiracy to defraud. The following is a part of the prayer of the petition: “That the alleged sale of the property may be declared fraudulent and void as to plaintiff; that an accounting be had between the plaintiff and the defendants, and after such accounting the plaintiff may be permitted to redeem by paying the prior mortgagees and lienholders such amount as may be found due them, and the interests, lien, rights of the defendants Williams-Hayward Shoe Company, the Boss Manufacturing Company, John Melhop, Son & Co., Cedar Falls Mill Company, and the Rider-Wallis Company, be declared junior and inferior to plaintiff's said mortgage; that the plaintiff have a special execution for the sale of the said mortgaged premises, and such other relief as the court may deem just and equitable in the premises.” There was an amendment to the petition, and an additional prayer, which it is not important to set out, for the consideration of the questions presented. The district court gave to plaintiff a judgment on the note, and denied to it other relief, and the plaintiff appealed. Affirmed.Geo. Wambach and Geo. M. Craig, for appellant.

J. T. Sullivan, for appellee Smith, Lichty & Hillman Co.

Courtright & Arbuckle and M. F. Edwards, for other appellees.

GRANGER, J.

1. It will be remembered that, after the writ of attachment was in the hands of the sheriff, the Smith, Lichty & Hillman Company obtained an assignment of the Beaver Valley Bank mortgage, and gave the same to the sheriff for foreclosure, and the sheriff took possession of the goods by virtue of the mortgage, and closed the store. He then, by order of the Smith, Lichty & Hillman Company, levied the attachment on part of the stock of goods, and it appears that he...