Worley v. Sheppard

Ladd, J. 1. Appeal- queswfflSbehlch reviewed. Charles Worley recovered judgment against ¡3. W. Sheppard in March, 1905, on a debt originating in 1892. In June following execution was issued, and John-S01DL Sheppard served with notice of garnishment. The garnishee answered that he had possession three horses and a colt belonging to the judgment debtor on which he held a chattel mortgage to secure the payment of a note bf $500 given to him in settlement for rent due' and borrowed money. The plaintiff controverted this answer by alleging the fraudulent character of the mortgage, and also assailing the conveyance of a quarter section of land in Nebraska as fraudulent, and praying judgment for the value of the land and horses. The trial court held that the title to the land could not be questioned in the proceeding, and that it was unnecessary to determine whether" [5] the trustee in bankruptcy was entitled to relief ratber than the judgment plaintiff. The judgment was the only claim filed in the bankruptcy proceedings, and this may account for the indifference of the parties as to whether plaintiff or intervener shall succeed, for, though the trustee appealed, no argument appears in his behalf; it being said merely that the conclusion of the district court was against the weight of the evidence. But the trustee joined the judgment plaintiff in arguing that the remedy pointed out by section 3979 et seq. of the Code in relation to the levy of a writ of attachment, or of execution on mortgaged property, are not exclusive as a remedy, and insisting that, inasmuch as the district court found the mortgage fraudulent, judgment should have been rendered against the garnishee for the value of the horses. The appellees' respond only by asserting that the evidence failed" to show the fraudulent character of the mortgage. In view of these arguments all matters relating to the bankruptcy proceedings, and the trustee therein ■ must be regarded as eliminated from our consideration, and attention may be directed to the' issues which the parties have elected, to submit as controlling. 2. garnishment: conveyances: trial: íeview. The district court found the mortgage to have been fraudulent, and, without reviewing the evidence in detail, it is enough to say that a careful reading of’ the record has raised a doubt as to the correctness of this conclusion. Moreover, trial in such a cage £g ^y orclinary proceedings, and the finding has such support in the evidence as to preclude any interference by this court. 3 Fraulent conveyances remelies The district court was mistaken in thinking that the remedy .provided by the cited sections is exclusive, for section 3988 of the Code, and as amended by Acts 27th General Assembly 1898, chapter 104, expressly provides that nothing m this “chapter contained shall be construed to forbid or [6] in any way affect the right of a creditor to contest in any other way the validity of any mortgage.” And this court has so 'decided. Citizens’ State Bank v. Council Bluffs Fuel Co., 89 Iowa, 618; Singer Piano Co. v. Walker, 113 Iowa, 664. See Brainard v. Van Kuran, 22 Iowa, 262. Since the service of notice, the garnishee has sold the colt for $85, and one of the horses for $150. The testimony that the sorrel team was worth $300 is undisputed. The cause will be remanded, with direction to enter judgment for the above sums, with interest from December 18, 1907. — Reversed.