Tone Bros. v. Shankland

Waterman, J.

Shankland obtained a judgment-' against the city of Des Moines for the sum of four hundred’ dollars. This equitable proceeding was instituted to subject the amount due thereon to the payment of plaintiff’s-■judgment. J. D. Whisenand and E. Gr. Shankland intervene, claiming each to own one-half of the judgment against ■' the city. Whisenand claims as assignee of C. IT. Sweeney.. The facts set up by interveners are as follows: Shankland' had a claim against the city of Des Moines, which was disputed. He put the same into the hands of Sweeney, who-was an attorney at law, for collection. Not having means-to pay the costs or fees, Shankland made an oral assignment, of one-half the claim to Sweeney, to pay for his services- and expenses. He was also indebted to E. Gr. Shankland, - his wife, and, in-part payment of what he owed her, he-assigned to her orally the remainder of the claim. The-present-action was instituted after these alleged assignments-were made.

*527 1 I. Some objection is made to the form of th,is proceeding. It is said that it is in the nature of a garnishment, and that a municipal corporation, under section 3936, Code, cannot be garnished. There are several answers to this ■ claim: (1) This is not a garnishment proceeding, though’ its effect may be the same. (2) If it were such, only the garnishee could'plead the exemption, and it does not do so. Clapp v. Walker, 25 Iowa, 315. (3)This objection does not seem to have been made in the trial court.

2 II. Appellant claims that an oral assignment of an account is invalid. Whatever rooni there may have been-at one time in this state for controversy on this point, there is none now. An account may be verbally assigned. Moore v. Lowrey, 25 Iowa, 336; Howe v. Jones, 57 Iowa, 130; Foster v. Trenary, 65 Iowa, 620; Seymour v. C. Aultman & Co., 109 Iowa, 297.

3 III. Was there an assignment made by Shankland?" We have set out the claims of the interveners above, but we-must say that after a careful perusal of the record we fail to find testimony which gives them substantial support. It is doubtless tme that Shankland was to pay Sweeney one-half the amount of the judgment for fees and expenses, and was to apply the remainder* on an indebtedness • to his wife, but this would not be an assignment. Plaintiff’s-lien had attached before any such payments were in fact made. There is absolutely no evidence of an assignment to • the wife. *As to Sweeney’s claim, he testifies that there was-a present assignment made at the time the account against ■ the city was placed in his hands. He does not remember what was said. He testifies to conclusions only. He admits, however, — and it tends to weaken his case,— that the word’ .“assignment” was not used in the conversation between him and Shankland. As further detracting from the accuracy of his recollection, he admits having filed an attorney’s lien on the judgment against the city and to have put into the- *528 judgment entry, which he wrote some days after the conclusion of the court was announced, a provision for a lien for his services. So, too', on Shankland’s part, to show he did not understand that he had previously made an assignment to Sweeney, it is established that after judgment against the city he gave the following order on the city auditor: “B. O. Hanger, City Auditor: Please deliver my warrant for services for city, as allowed by council 12-27-97, amounting to $400, to E. G. Shankland, and oblige. J. M. Shank-land.” We will say in explanation that the amount for which judgment was rendered against the city was reached by agreement with the city council. Having claimed a lien on this fund as the property of Shankland, Sweeney cannot now be heard to assert title in himself. Bank v. Dows, 68 Iowa, 460; Crawford v. Nolan, 70 Iowa, 97. There is no warrant for holding that this was an equitable assignment, under the pleadings and testimony. Foss v. Cobler, 105 Iowa, 728. Altogether, we are of opinion that plaintiff’s lien should have been established agáinst defendants and interveners; Some question is raised because the city saw fit to pay over part of this money to one of the interveners after this action was begun. This cannot in any way prejudice plaintiff’s rights. It is a matter wholly between the city and such intervener. The judgment must be reversed.

Granger, O. J., not sitting.