Western Fruit & Candy Co. v. Petersberger
| Citation | 143 N.W. 399,161 Iowa 436 |
| Parties | WESTERN FRUIT & CANDY COMPANY, JOHN NOPOULOS and LOUIS FISCHER, Appellants, v. ISAAC PETERSBERGER and AD. SEIDEL & SONS |
| Decision Date | 23 October 1913 |
| Court | United States State Supreme Court of Iowa |
Appeal from Scott District Court.--HON. WM. THEOPHILUS, Judge.
A MOTION that the clerk of court be ordered to turn over money received by him from a garnishee to the Western Fruit & Candy Company to the moving party was overruled, and that company appeals.
Affirmed.
Sharon & Higgins, for appellant.
Isaac Petersberger, for appellees.
Judgment was recovered in favor of Ad. Seidel & Sons against John Nopoulos in justice court, and, execution having issued thereon, the Iowa National Bank of Davenport was served with notice of garnishment. It answered that Nopoulos had an account with it "under the name and style of the Western Fruit & Candy Company;" that "against said account said principal defendant drew checks;" and that there was "a balance owing him of $ 193." Of this amount $ 168.26 was condemned to the payment of the judgment, and Nopoulos appealed to the district court. The bank paid this sum into the hands of the clerk, and on final hearing September 20, 1911, judgment was entered discharging the bank as garnishee, awarding Nopoulos judgment against Ad Seidel & Sons for costs, reciting that "the interveners (Western Fruit & Candy Company and Louis Fischer) dismiss their petition of intervention," and ordering that the bank "be exonerated in this case." Thereafter, and on the 16th day of December, 1911, the Western Fruit & Candy Company (a partnership composed of Nopoulos and Louis Fischer) filed a motion, reciting the foregoing facts and asking that the clerk of court be ordered to pay to it the sum paid to him by the bank. The court refused to hear evidence holding the motion insufficient, and shortly afterwards an amendment thereto was filed stating the facts in greater detail. All parties connected with the litigation were in court, and on motion of the clerk the application was dismissed. The grounds of this motion were that the clerk was entitled to his day in court and a jury trial, and that the movant was not an execution plaintiff and for this reason could not avail itself of the summary proceedings authorized by statute.
It will be observed that the Western Fruit & Candy Company had withdrawn its petition of intervention just in time to avoid being adjudged entitled to the money in the hands of the clerk, and the entry exonerating the bank could have no effect other than adjudging it not liable to Nopoulos. The Western Fruit & Candy Company, having gone out of the case was not bound by the adjudication, if such it may be designated, and for all that the bank had done or the court had ordered might have exacted payment of the entire amount paid into the...
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Fowler v. Decatur Cnty.
...then treasurer turned this money over to his successor. As bearing upon the views here expressed, see 29 Cyc. 1455; Western Fruit & Candy Co. v. Petersberger, 143 N. W. 399;District of Columbia v. Petty, 229 U. S. 593, 33 Sup. Ct. 881, 57 L. Ed. 1343. In the Western Fruit & Candy Co. Case, ......
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...v. Petersberger, 161 Iowa 436, 143 N.W. 399; District of Columbia v. Petty, 229 U.S. 593, 57 L.Ed. 1343, 33 S.Ct. 881. In the Western Fruit & Candy Co. case, supra, was held that, because the statute did not constitute the clerk of court the custodian of the fund, he did not receive it by v......
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