Wehrman v. Moore
| Decision Date | 26 September 1916 |
| Docket Number | 30711 |
| Parties | W. A. WEHRMAN et al., Appellants, v. CLAUDE MOORE et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--J. T. MOFFIT, Judge.
LITIGATION was had in the district court of Linn County, resulting in decree that appellee Heins had the lien of a pledgee on certain property claimed by the plaintiff. The decree fixed the amount for which the lien was established and might be foreclosed. Heins was proceeding to foreclose. Thereupon, the plaintiffs and the intervener perfected an appeal from said decree. Pending appeal, application was made to Benjamin I Salinger, as judge of the Supreme Court of Iowa, to restrain Heins from thus proceeding, and to compel him, upon deposit with the clerk of this court of a sufficient amount to satisfy any judgment Heins might obtain on appeal, to surrender said property to intervener. An order to this effect was granted, and concurred in by Justices Deemer, Ladd and Gaynor. The deposit has been made and the order obeyed.
This is an original application in this court, in effect, to annul said order and to dismiss the appeal of the plaintiffs.--Motion Denied.
Motion Denied.
R. S Milner, for appellants.
Lewis Heins, pro se, C. E. Wheeler and M. P. Cahill, for appellee.
I.
The intervener has dismissed his appeal. It is idle to go into the question of his motives for doing so. On the face of the record, an appeal remains on part of Wehrman and Trueblood. It appears from the record made on the granting of said order that one question involved is whether the award to Heins does not include some $ 1,400 usury. While Wehrman and Trueblood have sold to Grossman, $ 4,000 of the purchase price is in escrow, awaiting final determination of this appeal. Notwithstanding the dismissal by Grossman, then, plaintiffs have the right to maintain this appeal, and all arguments on whether they will or should be successful must be reserved for the final submission, and have no place in a motion to dismiss the appeal. This would, of itself, dispose of the claim that it was agreed between the partners and Grossman that part of the purchase price should be paid to satisfy the Heins decree in full. If such agreement is found proved on final submission, it may compel affirmance of the full allowance made Heins below. But whether such agreement was or was not made is not now controlling as a reason for dismissing the plaintiffs' appeal. Moreover, all the record made on this motion preponderates greatly against the claim that there was such agreement. It was apparent that Grossman would not pay any of the purchase price until Heins released his lien. Consequently, he did not, as is claimed, agree to pay over any money before the lien was discharged. Money that, confessedly, was not to be turned over until after Heins released, could not have been available, as Heins says it was, to obtain the release. And there are letters in the record written by Heins after the alleged agreement which are quite inconsistent with his claim that he knew of and relied upon such an agreement. There is other subsequent conduct on his part which is inconsistent with this position. Repeating: it is highly improbable that Milner would be given money by Grossman to pay Heins in full while the plaintiffs were quarreling with Heins and with each other, and give it to him before release, when his essential position was that he would pay no money until after a release had been obtained. Again, proof that there was such an agreement would have been exceedingly material on the application for restraining order. It was so much discretionary that it may be doubted whether it would have issued if a satisfactory showing had been made that the parties seeking to stay enforcement had contracted to sell the property in dispute and with its proceeds to pay Heins in full. No such point was as much as intimated on that hearing.
II. As to the challenge of authority of Milner to accept notice of appeal for Trueblood, since it is undisputed that Milner was, at all events, the attorney for Trueblood in the trial below, the statute on notice of appeal is sufficient answer.
2.
Heins started out by saying that Trueblood did not authorize or join in the appeal. There is much evidence that he did, but it is unnecessary to exhaust it. While it is true that, for a time, Trueblood demanded that the appeal be dismissed, and made affidavits tending to sustain the claims of Heins, more or less, it appears that, by paper filed in this court on May 2, 1916, Trueblood concluded to change his position and to have the appeal proceed. Nor need we go into the question of what the effect would be upon the appeal of Wehrman if Trueblood withdrew, and what the situation would be on failure to have served notice on Trueblood, the necessity for such notice appearing only after it was too late to serve such notice.
3.
As to the challenge of Milner's authority to accept service of the filing of the petition of intervention, it seems to us that there was general authority to serve him with notice of any pleading filed in the case; that it is not very material on this motion whether any notice was served, nor material, as is claimed and disputed, that the petition was not filed until after decree was entered. No objection was made to the late filing. On the contrary, Heins entered appearance through his attorney who stipulated with reference thereto. We do not think it is seriously contended that those attorneys had no authority. For one thing, they represented Heins on the subsequent application for the restraining order, and still represent him in this court, and no such argument was advanced on that application.
4.
As to failure to serve notice of the filing on Moore: he was before the court; and, at the same time that it recognized the petition of intervention, it recognized also the stipulation by which Moore's interest had been cut off; and he had no interest at the time, having quitclaimed all the interest he had.
III. Wehrman, Trueblood and Moore became partners. The partnership, or some of its members, owned or had an interest in certain stocks of the Chandler Motor Car Company and in a Chandler car used for demonstrating purposes. Heins asserts that, by reason of advances made, he was the pledgee of said property. Litigation was had below, which resulted in a decree establishing the lien claimed by Heins, and settling the amount due him for which the pledge was security. One Grossman intervened at some stage of the proceedings, joining the plaintiffs, and claiming that, by purchase from them, he had become the owner of the property in controversy. Wehrman and Trueblood perfected an appeal from said order and decree. Intervener made application to the writer to restrain Heins from enforcing his pledge by sale pending the appeal. He asserted that the property was of highly fluctuating value that its possession was, therefore, necessary to intervener so that he might avoid loss which might ensue, because, pending appeal, the property which he might sell, if he had control of it, would greatly depreciate in market value; that Heins could not be made to answer for a loss resulting, pending appeal, from decline in the market value of the property. There was offer to deposit with the clerk of this court a sum sufficient to pay Heins in full if affirmance should ensue, and urged that, since he had no rights except as pledgee, and to not more than the allowance in the decree, such deposit would save him harmless, no matter how the appeal was decided; that, on the other hand, though the appeal resulted favorably to appellants, they, instead of being saved harmless in that event, as Heins would be if he prevailed, might still sustain great loss. Respondent Heins appeared by counsel, and objected: (1) that there is no power to compel him to accept a deposit in the office of the clerk in lieu of his contract right to be paid the money due him, and that so to order would violate constitutional guaranties, both state and Federal, prohibiting the impairment of contract rights; (2) that neither the Supreme Court, much less, any judge thereof, had power to issue the order applied for. An order was granted restraining Heins from proceeding to enforce his claims pending appeal, and commanding Heins to surrender said property to intervener, if a deposit named in the order were made with the clerk. The deposit was made, and the order of surrender complied with. None the less, it is now urged on this motion that the order should not have been made and should be rescinded. It is further urged that the intervention was illegal; that intervener has now dismissed his appeal--wherefore, that phase of the litigation is no longer in court; and that there was...
To continue reading
Request your trial