
    Kate E. Kuhnes, Appellant, v. T. A. Cahill, Defendant, and R. H. Riley et al., Interveners, Appellees.
    Election of remedi.es. The holder of a bank check, who, disre1 garding the same, sues for the amount, aiding the action by-attachment of the bank on which the check was drawn, is bound by an election of remedies and cannot claim the fund in bank, by virtue of the check, as against the holders of other checks drawn prior to the attachment.
    Bank check: equitable assignment. A check on a general deposit 2 amounts to an equitable assignment of the fund to that extent, and though unpaid creates a right to the fund superior to that of a subsequent attachment. Such an assignment is unaffected by the recording acts.
    
      Appeal from Calhoun District Court.— Hon. Z. A. Church, Judge.
    Friday, October 20, 1905.
    The opinion states the case. From a judgment in favor of interveners, the plaintiff appeals.
    
    ■Affirmed.
    
      M. B. McCreary, for appellant.
    
      E. C. Stevenson, for appellees.
   Bishop, J.-

August 2, 1901, plaintiff sold to defendant, Cahill, a lot of hogs at the'agreed price of $323.60, for and on account of which Cahill drew a check in ordinary form, payable to plaintiff, on the First National Bank of Eoclcwell City. Plaintiff did not present the check at the bank for payment until about August 12, 1901, when payment was refused. It is conceded that at the time the check was drawn and presented Cahill had on deposit in said bank, subject to cheek, the sum of $794. Payment was refused because', just before the check was presented, the bank had been garnished at the suit of some person, not mentioned in the record, against Cahill. On August- 12,. 1901, and after payment of the check had been refused, plaintiff commenced this action against- Cahill on account to recover the sum of $323.60, the agreed sale value of the hogs. The action was aided by an attachment-, and the First National Bank was garnished thereunder on the same day. On October 28, 1901, petitions of intervention were separately filed in said action on behalf of K. II. Biley, Frank Logsdon,' C. G. McHugh, Gilbert Davis, G. W. Carlisle, and II. Conley. Each of the petitions was based upon a check in ordinary form given by Cahill in payment for hogs sold, and drawn upon said First National Bank. That in favor of Biley was drawn August 3, 1901, for $13.77; that in favor of Logsdon was drawn August 3, 1901, for $189.72; that in favor of McHugh was drawn July 13, 1901, for $50.76; that in favor of D&vis was drawn August 3, 1901, for $92; that in favor of Carlisle was drawn August 3, 1901, for $64.51; and that in favor- of Conley was drawn August 2, 1901, for $39.30. In each of the petitions it is alleged that the respective check constituted a pro tanto assignment, equal to the amount named therein, of the moneys on deposit in the bank to the credit of Cahill. The prayer of each petition is that the right of plaintiff to subject said deposit fund to the payment of her debt be postponed until after payment due interveners has been made, and judgment is asked, as against both parties and the bank, garnishee. To the several petitions of intervention, the plaintiff filed formal answer. The case was submitted to the court upon an agreed statement of facts, in which was recited the matters stated above, with the additional fact that, following the garnishment of the bank by plaintiff, each of the interveners presented his check to.the bank and. payment in each instance was refused. By tbe judgment entered, plaintiff was awarded a recovery as against Cabill in the amount of ber claim, with interest and tbe costs of tbe action; each of tbe interveners was awarded a recovery as against Cabill for tbe amount of bis claim, respectively, and against tbe deposit fund in tbe bands of tbe bank, garnishee, for such amount, with interest; in favor .of tbe interveners, tbe costs of tbe action were ordered taxed against both plaintiff and defendant Cabill.

It will be observed that- plaintiff claims nothing in virtue of tbe check given ber. Having elected to sue upon tbe account in ber fa.vor against Cahill, and to proceed by attachment, whatever rights she has in tbe deposit fund arise solely out of tbe garnishment proceedings. In other words, she is bound by her election of remedies. McLean v. Ficke, 91 Iowa, 283; 15 Cyc. 262.

This being true, we have but one question in the case, and that is whether tbe several checks held by tbe interveners amounted to an assignment of tbe funds in tbe bank and for that reason are entitled to priority in payment x ° r J over the attachment claim of plaintiff. All tbe transactions occurred and tbe proceedings were had before tbe enactment of tbe present statute on tbe subject of commercial paper, and in view of our frequent decisions tbe question as presented can hardly be regarded as an open one. Tbe following cases are authority for tbe rule that the giving of a check drawn upon a general deposit fund in a bank amounts to an equitable assignment pro tanto of such fund: Roberts v. Corbin & Co., 26 Iowa, 315; Schollmier v. Schoendelen, 78 Iowa, 426; May v. Jones, 87 Iowa, 188; Bloom v. State Bank, 121 Iowa, 101. Tbe relation between a bank and a depositor therein on open account is that of a debtor and creditor. Officer v. Officer, 120 Iowa, 389; Elliott v. Bank, 128 Iowa, 275, and it has long been settled that an assignment of a debt is .good as against a garnishment. Moore v. Lowrey, 25 Iowa, 336; Gimble v. Ferguson, 58 Iowa, 414. The question does not involve the recording acts, as an assignment by check is absolute and the property does not remain in the possession of the assignor. As in the case of an assignment of book accounts, recording in such cases is unnecessary. Lawrence v. McKenzie, 88 Iowa, 432.

It will be observed that the aggregate amount due the interveners i& not equal to the amount of the deposit fund. We are not advised as to the facts in respect of the prior garnishment; but, proceeding upon the assumption, as we must, that the judgment is correct in the absence of an affirmative showing to the contrary, we take it that in the course of the proceedings under the former judgment the fund was so far depleted as to leave no more than was necessary to satisfy the demands of the interveners.

We find no error, and the judgment is affirmed.  