Pool v. Paul , 23 Iowa 421 ( 1867 )

Wright, J.

practice : injunction: trial. The argument made, is, that this was an equitable proceeding, that it could not be heard upon other than written evidence, in the absence of consent as contemplated by section 3001, this being so and the record not disclosing any evidence, this court hearing the case de novo, can do no more than the court below should have done, dismiss the intervener’s petition without prejudice.

The appellant’s argument is defective in assuming that this was an equitable proceeding, or that the injunction was asked and obtained as an independent means of relief, or that this was the basis of plaintiff’s cause of action. The record discloses that the injunction was only necessary to prevent the garnishees from paying over this money, and that every issue made or presented, could be and was to be tried in the law action, to which' the injunction was but auxiliary. The prayer for the injunction asked no relief as against the wife. On her own motion she was allowed to intervene as was her right under section 3237 of the Revision. For this declares, that any person other than the defendant may, before the payment to the plaintiff of any attached debt, present his petition, verified, etc., stating a claim to the money, setting forth the facts upon which the claim is founded, and this claim shall be investigated in a summary manner. The court may hear the proof, or order a reference, or impanel a jury to inquire into the facts, and we need not say that a person can thus intervene in an ordinary as well as an equitable proceeding. The wife could, therefore, have intervened, and did, in fact, intervene in the law action, to which the injunction, as already stated, was but auxiliary; this being so, it follows, that we cannot say that there was any error in the order made by the court below. It was competent to investigate the claim to the money in a summary manner, and the correctness of the conclusions reached, we cannot undertake to review without the testimony. This conclusion too is more apparent when it is remembered that appellant abandoned her claim, and thus, after entering a voluntary appearance, virtually admitted all that plaintiff asked by his attachment. As somewhat applicable see White v. Kelley, present term.

Affirmed.