Wilkinson v. Queal Lumber Co.
| Decision Date | 24 June 1929 |
| Docket Number | No. 39450.,39450. |
| Citation | 208 Iowa 933,226 N.W. 43 |
| Parties | WILKINSON v. QUEAL LUMBER CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Herman F. Zeuch, Judge.
Action to recover damages for personal injuries received by the plaintiff as a result of being struck by an automobile belonging to the defendant Queal Lumber Company and operated by the defendant Neel. Judgment was rendered in favor of the plaintiff, and the defendants appeal. Reversed.
B. O. Montgomery and Tolbert C. Moore, both of Des Moines, for appellees.
This is the second time this cause has been in this court, the opinion in the former appeal being reported in 203 Iowa, 476, 212 N. W. 682. The facts are set forth at considerable length in the opinion filed on the former appeal, and we do not deem it necessary at this time to restate them. After the reversal of said cause, the appellants filed an amendment to their answer, in which they set up that the appellee had assigned her cause of action to the Iowa Congregational Hospital, and that by reason of such assignment there was a defect of parties. A copy of the assignment was attached to said amendment to the answer, and the same purports to assign to the said Iowa Congregational Hospital the appellee's claim against the appellants, and to authorize the said hospital “to ask, demand, collect and receive all sums up to $244.15 and interest.” Thereafter the said hospital appeared in said cause and filed what is designated a “claim of lien,” alleging that the purpose and intention of said assignment was to create a lien upon any funds recovered in said cause “for the security of a certain hospital bill in the sum of $244.15, and interest thereon at 6%, and for no other purpose.” Various amendments were filed and orders entered, and eventually an order was made directing that the Iowa Congregational Hospital and the Iowa Lutheran Hospital be made parties defendant to said action. Subsequently each of said hospitals appeared as defendants and filed separate answers. The Iowa Congregational Hospital alleged that it had transferred any interest it had under its said assignment to the Iowa Lutheran Hospital, and prayed that the suit as to it might be dismissed. The Iowa Lutheran Hospital alleged that it held the assignment given to the Iowa Congregational Hospital, and prayed “that the Court protect the rights of this defendant under said assignment, and determine its rights under said assignment; that judgment be entered for this defendant against said Caroline Wilkinson in the sum of $273.43 and interest from date at six per cent and the Queal Lumber Company and Ransom Neel and determine its rights against the Queal Lumber Company and Ransom Neel, and for costs.”
The appellee, replying to appellants' amendment setting up said assignment, pleaded that said assignment “was given to the Iowa Congregational Hospital for the sole purpose of securing a certain hospital bill, in the sum of $244.15, and for no other purpose whatsoever, and that it was the intention of this Plaintiff, to assign by said assignment $244.15 worth of whatever judgment might eventually be rendered in favor of the Plaintiff in this cause of action.”
Thereafter the appellants filed a motion to transfer said cause to equity, which motion was overruled. Later, the said Iowa Lutheran Hospital filed a petition of intervention in said cause, setting up said assignment, and alleging:
“That this intervener, Iowa Lutheran Hospital, states that they claim no interest whatsoever in the cause of action of the plaintiff against the defendant, but that the intent, purpose, and meaning of said assignment executed to the Iowa Congregational Hospital on the 13th day of October, 1925, and the sole and only purpose of said assignment to the Iowa Congregational Hospital, was an interest in any judgment which might be recovered by the plaintiff or Wm. Wilkinson against the Queal Lumber Company in cases Law-34947 and Law-34948, up to the sum of $244.15 and interest at six per cent from October 13, 1925.
The intervenor, Iowa Lutheran Hospital, further states, that it has no interest and claims no interest in the controversy as first lien on any judgment that may be recovered by this plaintiff against the defendant in the aforesaid mentioned cause.”
The prayer of this petition was that, in the event the plaintiff recovered judgment against the defendants, the intervener's claim might be established as a lien on said judgment.
Appellants again moved that the cause be transferred to equity, which motion was overruled.
[1] I. The first question for our consideration is the alleged error on the part of the court in refusing to sustain the motion to transfer said cause to equity. The appellants rely on the familiar rule that a single cause of action may not be split so as to permit the bringing of successive actions without the consent of the debtor. The rule is announced and the cases are collected in Kinart v. Seabury Co., 191 Iowa, 937, 183 N. W. 586. In said case we said:
[2] Appellants lay stress upon the last sentence quoted as controlling the instant case. The theory of appellants is that, under the rule announced in the Kinart Case, it was essential, in order for the appellee to maintain the action in the instant case, that the Lutheran Hospital should have been made a party plaintiff, or that, if this was not done, it was incumbent upon the appellee to make said hospital a party defendant and to then move to transfer the cause to equity. But the record does not present a situation in the instant case requiring such procedure. The appellants first raised the question of the assignment. Thereupon, by order of court, the assignee was brought into the case as a defendant. The assignee also appeared as an intervener and expressly disclaimed any interest under its assignment in the cause of action. It affirmatively pleaded that the only interest it claimed under said assignment was, not a right in the cause of action against the appellants, but simply a “claim to a lien” upon any judgment that might be obtained in behalf of the appellee in said action. In this view of the record we do not think that the court erred in overruling appellants' motion to transfer said cause to equity. The only equitable issue that was presented by the answer of the appellants setting up said assignment and the petition of the hospital as an intervener was the claimed right to establish a lien upon any judgment that might be obtained to a certain amount. It was...
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