Provident Bank Stock Co. v. Schafer

Deemer, J. The statements found in defendant’s-answer to which plaintiff’s motion was directed were, in effect, general and special denials of certain allegations in the supplemental petition. The allegations which were denied’ recited the issuance and levy of the writ, and proceeded as follows: Paragraphs. Alleges that on or about the fifteenth-day of February, 1897, the Lynchburg Trust & Savings Bank was the owner of said premises levied upon under said writ of attachment, and on said date the defendant E. Schafer purchased said premises from said Lynchburg Trust & Savings Bank; but, for the purpose of cheating and defrauding plaintiff and other creditors, the said E. Schafer caused said, premises to be conveyed to Eugenia M. Schafer, his wife, who accepted title thereto with the intent and for the purpose of aiding and assisting the said E. Shafer in cheating- and defrauding his creditors. Paragraph 3 alleges that by virtue of the levy of said wifit of attachment the plaintiff has a lien upon said premises that is paramount and superior - to the lien of the defendant Eugenia M. Schafer. The motion was to require the defendant to state whether or not she was. [442] the owner of the property, and, if the owner, .when and in what manner she acquired title, and the consideration paid; to fully and explicitly answer the allegations of the second paragraph of the supplemental petition; and to state from whom she received the consideration. It will be observed that defendant was not demanding affirmative relief. She was simply meeting the allegations of the petition and supplement, as she had a right to do. The-statute provides, in substance, thát a defendant served by publication may a„t hny time within two years after the rendition of. judgment .appear and make defense, and thereupon the action shall be tried as if there had been no> judgment. Had there been no judgment, it is clear that defendant’s answer, consisting of general and specific denials, would have tendered an issue, and cast the burden on plaintiff to make out his case. As the .plaintiff attacked the defendant’s answer, the case must be treated as if a new trial had been awarded. Indeed, it appears from the record that defendant’s motion to set aside the original judgment was sustained, and the cause was docketed for trial at a subsequent term. The motion, attacking the answer was filed at this subsequent term. After the motion was overruled, the court, on plaintiff’s motion, entered an order requiring the parties to take their evidence in writing, that plaintiff first take and file its evidence, and that defendant follow in a time fixed in the order. No evidence was taken by either party, and when the case was reached for trial certain admissions were made by the parties, and a decree was entered canceling and annulling the previous judgment and decree so far as it related to the attached property, and dismissing the supplemental petition.. The denial interposed by defendant was authorized by the statute (Code, section 3566, subds. 2, 3), and applied to the allegations of fact made by the plaintiff. It is not vulnerable to the objection that it simply stated a conclusion. H©uce the case of Cottle v. Cole, 20 Iowa, 482, relied upon by appellant, is not in point. There the denial was of a conclusion, and not [443] of a fact. Thompson v. Cook, 21 Iowa, 474, is not in point. There the petition stated a conclusion, rather than a fact, .and it was held vulnerable to a motion for a more specific statement. At the trial plaintiff offered no evidence to sustain the .allegations of its supplemental petition, which, as we have seen, were denied by the defendant, and decree was entered .as before stated. While this decree may have given defendant more than she was entitled to under the pleadings, yet plaintiff is in no position to complain, for the reason that it •does not appear that it had any lien upon or interest in the property. Moreover, plaintiff does not raise the point that the final decree, as entered, is not justified by the pleadings. There was no prejudicial error, and the judgment is AEEIRMED. Granger, O. J., not sitting.