Whittier v. Whittier
| Decision Date | 18 June 1946 |
| Docket Number | 46850. |
| Citation | 23 N.W.2d 435,237 Iowa 655 |
| Parties | WHITTIER v. WHITTIER (CEDAR RAPIDS ENGINEERING CORPORATION et al., Garnishees). |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
John D. Randall, of Cedar Rapids, for appellant.
R S. Milner, of Cedar Rapids, for appellee.
Donnelly Lynch, Anderson & Lynch, of Cedar Rapids, for garnishees-appellees.
On November 17, 1939, plaintiff Ruth Whittier was divorced from defendant Arnold Whittier by the district court of Linn county. On that date there was filed with the clerk of that court a stipulation of settlement, signed by the parties, which states in substance: 'that in the event the court grants plaintiff a divorce, the property rights of the parties are hereby settled and agreed upon in accordance with the following provisions:
'1. Plaintiff is awarded the custody of her minor son, Kenneth Whittier.
The stipulation also provides for the sale of the parties' homestead and equal division of the proceeds between them; plaintiff is awarded all household furniture except three named articles and defendant's personal effects; a certain described cemetery lot 'is hereby decreed to be the joint property of plaintiff and defendant, in equal shares'; the court costs of $10 and the $50 fee of plaintiff's attorney 'shall be paid in equal proportions by plaintiff and defendant; defendant is awarded the certain Pontiac coach now owned by him, free from any claim of plaintiff.'
The decree of divorce 'finds that the allegations of said petition are true, and plaintiff is entitled to a divorce and such further relief as herein (therein) prayed' and recites
Plaintiff's petition prays for a divorce, the custody of her minor son Kenneth, alimony, attorney's fees and costs and such further relief as may seem equitable.
The vital question upon the merits of this appeal is whether the last sentence of the above quoted portion of the decree, in connection with paragraph 2 of the stipulation of settlement, also quoted above, constitutes an order or judgment which can be legally enforced by execution.
On June 26, 1945, plaintiff filed with the clerk of the trial court an affidavit dated April 30, 1945, that up to and including that date 'defendant will owe me $270 back alimony payments for which I am entitled to an execution.' The affidavit requests the issuance of an 'execution in the amount of $270 for permanent alimony up to and including April 30, 1945.' The clerk issued execution as requested and the sheriff, probably as directed by plaintiff's counsel, attempted to garnish defendant's employer. The garnishee answered that it was not indebted to defendant but that another corporation with a similar but not identical name was defendant's employer and was indebted to him in a certain amount. No pleading was filed controverting the answer of the garnishee. In view of our disposition of the appeal we may assume, without deciding, that defendant's employer was garnished.
Defendant filed a 'motion to quash execution and for other relief' which states that the divorce decree does not render any money judgment against him, no such judgment has ever been entered, and no legal notice of garnishment was ever served upon defendant's employer. The motion asks the court to 'decree there is no judgment against defendant for the payment of money,' to quash the execution and garnishment and for such further order as is necessary to secure the release of funds withheld from defendant by his employer. This motion was submitted upon the files and records in the case, the garnishee's answer and statements of counsel.
The court entered an order and judgment holding that the divorce decree 'with the stiplation thereto attached does not constitute a judgment in favor of plaintiff for $30 per month or any other sum,' no such judgment has ever been entered, the execution and garnishment were void and are quashed, the funds in the hands of the garnishee released and the garnishee discharged. From this adjudication plaintiff has appealed. We understand plaintiff concedes, probably for reasons hereinafter indicated, she is not entitled to a reversal of that part of the adjudication which released the funds attempted to be garnished and discharged the garnishee. However, plaintiff challenges the holding that she has no judgment against defendant for the payment of money.
Both defendant and the garnishee have moved to dismiss the appeal. One ground of each motion is that the amount in controversy is less than $300 and the trial judge did not certify 'that the cause is one in which appeal should be allowed.' See Rule 333, Rules of Civil Procedure. It appears without dispute that the amount sought to be held under the garnishment was $193.96. This was the amount in controversy between plaintiff and the garnishee. 4 C.J.S. Appeal and Error, § 87, p. 176; Adams v. Vanhoose, 225 Ky. 606, 9 S.W.2d 722; Northwest Adjustment Co. v. Akers, 145 Or. 341, 27 P.2d 889.
Another ground of the motions to dismiss the appeal is that plaintiff did not appeal from the discharge of the garnishee within two days from the order of discharge. The appeal was perfected 29 days after such order. If plaintiff desired to appeal from the discharge of the garnishee she was required to then announce her purpose to appeal and to perfect such appeal within two days from such adjudication. Upon her failure so to do, such discharge became final. Sections 12141, 12142, Code 1939, made applicable to garnishments under executions by section 11679; Woods v. Brown, 207 Iowa 944, 223 N.W. 868; Hewitt v. Hawkeye Casualty Co., 212 Iowa 316, 320, 321, 232 N.W. 835; Sioux Falls B. Ass'n v. Henry Field Co., 224 Iowa 655, 657, 277 N.W. 284.
Since plaintiff now concedes she is entitled to no relief against the garnishee, it is perhaps of little consequence whether the discharge of the garnishee is affirmed or the appeal dismissed, insofar as plaintiff might seek to review such discharge. Either disposition would bring the same practical result to the parties. But since the two grounds of the motions to dismiss to which we have referred challenge our jurisdiction to review the discharge of the garnishee and we think they are good, we feel called upon to dismiss the appeal insofar as it might seek to review such discharge. See authorities last above, also Kelley's Estate v. Kelley, 226 Iowa 156, 162, 284 N.W. 133, and cases cited.
Notwithstanding plaintiff's failure to appeal within two days from the adjudication below, we are inclined to entertain the appeal insofar as it challenges the holding that plaintiff has no judgment against defendant enforceable by execution. As stated, defendant's 'motion to quash execution and for other relief' asks not only that the garnishee be discharged but also that the court 'decree there is no judgment against defendant for the payment of money.' The court did so decree. This portion of the adjudication goes beyond the disposition of the garnishment proceedings.
The statutory requirement for appeal within two days from an order discharging a garnishment is designed to protect a garnishing creditor in whatever rights he may have under the garnishment but does not affect the right of appeal for other purposes. Munn v. Shannon, 86 Iowa 363, 365, 53 N.W. 263, 264; Woods v. Brown, 207 Iowa 944, 946, 223 N.W. 868; Hoyer v. Jordan, 208 Iowa 1256, 224 N.W. 574. See also Federal Land Bank of Omaha v. Jefferson, 229 Iowa 1054, 1059, 295 N.W. 855, 858, 132 A.L.R. 1282, 1285.
Although the amount in controversy in the garnishment proceeding proper was but $193.96 and the amount of past due payments of alimony was but $270 when the execution issued, it cannot be said the amount in controversybetween plaintiff and defendant is less than the jurisdictional amount of $300. When the matter was submitted to the trial court four payments of $30 each had become due, in addition to the $270 called for by the execution. It is not contended defendant had paid any part of the $270 nor of the additional installments which matured after the execution issued.
Even if no payments except the $270 had become past due, it would seem that the value of the unmatured instalments would more than make up the difference between $270 and the jurisdictional amount of $300. We cannot say that the past due payments together with plaintiff's right to future instalments does not involve $300. The effect of the adjudication below is not limited to the $270 past due. If that adjudication is to stand, no future payments may be enforced by execution even after they mature. While future payments of alimony are subject to modification if circumstances render a change expedient (Code, section 10481), and the death of a party might terminate the right thereto, they are not in any proper sense contingent or speculative.
Rule 331(a), Rules of Civil Procedure, provides that all final judgments of courts of record may be appealed to this court except as otherwise stated. The exception found in Rule 333 is that unless an interest in real estate is involved, no appeal lies where the amount in controversy as shown by the pleadings is less than $300, without a certificate of the trial judge. Except that the amount is increased from $100 to $300, this rule...
To continue reading
Request your trial
-
Lashgari v. Lashgari
...implied as well as to that which is expressed." Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968), quoting Whittier v. Whittier, 237 Iowa 655, 663, 23 N.W.2d 435 (1946). "The judgment should admit of a consistent construction as a whole." Riley v. Liquor Control Commission, 153 Conn. 242, 2......
-
Jeans v. Jeans
...cit. 133. Compare Rolla Special Road Dist. of Phelps County v. Phelps County, 342, Mo. 459, 464, 116 S.W.2d 61, 64; Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435, 441.16 McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 739(27); Sanders v. Sheets, Mo.App., 287 S.W. 1069, 1072(7); 49 C.J.S.......
-
Flynn v. Lucas County Memorial Hospital
...granted, the absence of language commonly deemed especially appropriate to final judgments is not fatal.' Whittier v. Whittier, 237 Iowa 655, 662, 23 N.W.2d 435, 440 (1946). See also Moreno v. Vietor, 261 Iowa 806, 813, 156 N.W.2d 305, 309 (1968) ('If he intended his acts to be the entry of......
-
Esselstyn v. Casteel
...point. The question is not whether the parties intended that a judgment should be entered, but what the court intended. Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435; 1 Freeman on Judgments (5th ed.) 121, § 69; 27 C.J.S., Divorce, § 251(b), p. 1026. As we have seen, the court had power ......