Martin & Bro. v. Davis & Co.

Cole, J. The appellants claim, that, although their judgment was junior, and the levy of their execution subsequent to the appellees’ judgment and levy, they are nevertheless entitled to priority, because of the equitable rule which applies partnership property to the payment of partnership debts, and in preference to the- separate debts of the members of the firm. Conceding the rule to the full extent as claimed by appellants, there are still two sufficient reasons for affirming the judgment of the District Court. 1. judgment: copartnership, First, the claim of Martin & Bro. upon which their judgment against E. K. Gibbon and John B. Custer was rendered, was a debt due from the firm of E. Gibbon & Co., and was therefore a partnership debt as much as the appellants’ claim. The fact that the judgment was rendered against only two members of the firm, would not affect the equitable right to have the partnership property subjected to its payment. The rule in equity does not regard the form of the judgment, but the substance of the debt. Looking alone to the substance of the claims or debts of the respective parties, they are precisely equal in equity; both are partnership [537] debts. Especially is this true under our statute, which, holds the partner not sued or included in the judgment still liable. Rev., § 2764, last clause; Sellon & Co. v. Bradon, 13 Iowa, 365. But the appellees have obtained the first judgment and levy, and hence have the better right; for, when the equities are equal, the prior legal right is preferred. 2. execution-: levy: custodia legis. And second, the property levied upon by the appellants, was, at the - time of their levy, in the hands of a receiver appointed by the court. It was therefore m the custody ot the law, and not pr-op.erly or legally liable to seizure by an officer under an execution. Drake' on Attachments, §§ 492, 509, and authorities cited. See also, Rev., § 3197. The appellants ought not to acquire a legal advantage by an illegal act. They might have secured the recognition and enforcement of their rights in the attached or garnished property, by application on petition or motion to the court having custody of it. Having improperly seized the property by levy under execution, the appellants were not prejudiced by the order of the court made on the motion to discharge the levy and release the property from it. As to whether Martin & Bro. were or not entitled to the whole of the garnished property, instead of only two-thirds of it, as adjudged by the District Court, is not now before us, since they have not appealed. Affirmed.