Penn v. Pelan. a train over him if it can be avoided in the exercise of reasonable care after the person is discovered in his exposed condition. If after that the company should be guilty of negli gence whereby the exposed person should be injured, the negligence of the company would be deemed the proximate cause of the injury. Morris v. The C. B. & Q. R. Co., 45 Iowa, 29. So if the defendant negligently subjected Dunn to exposure to his injury, knowing that he was unconscious, or even helpless, the defendant cannot escape liability on account of Dunn's negligence prior to the wrongful acts whereby Dunn was subjected to exposure, however great Dunn's negligence may have been in allowing himself to become intoxicated. We think that the instructions should not have been given. REVERSED. PENN V. PELAN. Where a 52 535 113 669 52 535 132 213 1. Garnishment: ANSWER: MUST BE MADE IN PERSON. an answer. Appeal from Harrison Circuit Court. MONDAY, DECEMBER 8. THE garnishee filed an answer duly sworn to, stating that he is not in any way indebted to the defendant P. D. Mickel, and does not owe him any money or property now due or to become due, and did not at the time of the service of the garnishee proceeding; that he has not and at the time of the service of the garnishment had not in his possession or under his control any property, rights or credits of said Mickel, and that he does not know of any debts owing to said Mickel, or any property, rights or credits belonging to him and now in the possession or under the control of others. Penn v. Pelan. Afterwards he filed a motion to be discharged upon his answer. The plaintiff then filed a motion to strike the garnishee's answer from the files, and for judgment, and as grounds of such motion he stated that the garnishee was duly served with written notice, and was paid his fee in advance, and by notice was required to appear in person on the first day of the term and to answer such questions as might be propounded to him; that he has failed to appear in person as the statute required, and that he is in default by reason thereof. The motion of the garnishee to be discharged, and the motion of the plaintiff to strike from the files the garnishee's answer, and for judgment, coming on to be heard, the court overruled the garnishee's motion and sustained the motion of the plaintiff to strike the garnishee's answer from the files, and reserved the plaintiff's motion for judgment and allowed the garnishee to make a showing in excuse for his failure to appear in person. For such excuse the garnishee showed that before the commencement of the term he removed to Chicago, where he still resides; that before removing he took the advice of his attorney, who informed and advised him that he could file an answer in writing which would obviate the necessity of his personal attendance, and that he relied upon such information and advice. The court held the excuse to be insufficient, and rendered judgment against him for the full amount of the debt, to all which rulings the garnishee excepted, and he now appeals. P. D. Mickel, for appellant. McMillan, Cochran & Bailey, for appellee. ADAMS, J.-It is the right of the garnishing creditor to personally examine the garnishee. Whether, upon a proper notice 1. GARNISH- and showing, he may cause his answer to be taken swer: must be before a person authorized to take depositions we made in per- need not determine, as such question does not arise. The garnishee's answer, we think, was properly stricken MENT: an son. Haywood & Son v. O'Brien. from the files. If when that was done the garnishee had appeared and offered to submit to an examination, although not upon the first day of the term, it would have been improper to render judgment against him as for default. But no such appearance appears to have been made at any time. The plaintiff, therefore, was entitled to judgment. Code, section 2979. AFFIRMED. HAYWOOD & SON V. O'BRIEN ET AL. 1. Landlord and Tenant: ASSIGNMENT OF LEASE: ATTACHMENT. The assignment of a lease of real estate is valid, and vests the assignee with all the rights of the landlord, including the right to an attachment for non-payment of rent. Appeal from Clinton District Court. MONDAY, DECEMBER 8. THE petition states that Robert Huffman, by an instrument in writing, leased certain premises to the defendants for a term of years, the rent to be paid annually in money, and that the lease had been assigned to the plaintiffs. The rent being unpaid, the plaintiffs asked that a landlord's attachment be issued, which was done, and certain property of the defendants attached. The defendants moved the court to quash the attachment on the grounds, in substance, that the lease was not assignable, and that the relation of landlord and tenant did not exist between plaintiffs and the defendant. The motion was overruled, and the defendants appeal. John I. Mullany and Aylett R. Cotton, for appellants. SEEVERS, J. —It was held in Lufkin & Wilson v. Preston, ante, page 235, that leases like the one in question were 1. LANDLORD assignable, and that the assignee was entitled assignment of thereunder to the rent. This being true, we think it follows that the assignee is entitled to a writ and tenant: lease: attachment. 52 537 98 14 The First National Bank of Decorah v. Haug. of attachment, as provided by statute. The assignment of the lease carried with it the lien of the lessor, and all the remedies for its enforcement. AFFIRMED. THE FIRST NATIONAL BANK OF DECORAH V. HAUG. Where a 1. Contract: TIME OF PERFORMANCE: REASONABLE TIME. contract provided that the plaintiff should bring suit immediately upon a certain note, but time was not expressly made of the essence of the contract, it was held that it should be construed to give the plaintiff a reasonable time within which to bring such suit, and that the burden was upon the defendant, who alleged a failure to comply with the provision as to time, to show that his rights had been prejudiced by the delay. Appeal from Winneshiek Circuit Court. TUESDAY, DECEMBER 9. ACTION on a promissory note. Trial to the court, judgment for the defendant, and plaintiff appeals. M. P. Hathaway, for appellant. Brown & Wellington, for appellee. 1. CONTRACT: SEEVERS, J.-The defendant pleaded that at the time the note was given, and as a part of the same transaction, the parties executed the following instrument in writing: time of performance: reasonable time. "It is hereby agreed by and between The First National Bank of Decorah, Iowa, and J. J. Haug, of Spillville, Iowa, as follows: The First National Bank, aforesaid, hereby assigns to said J. J. Haug their judgment against Rudolph and Christine Pfuminger, in Circuit Court, Winneshiek county, Iowa, dated May 10th, 1875, for $192.50 and costs, and their note made by said Rudolph and Christine Pfuminger, $70.75; date, Oct. 8th, 1870; due, 30 days; 10 per cent interest. As consideration of such assignment, said J. J. Haug gives his note The First National Bank of Decorah v. Haug. of even date herewith for $348.78, due one year from date, bearing ten per cent interest. It is further agreed that said First National Bank shall immediately sue said $70.75 note, and if upon trial it shall appear that said note has been paid, then the amount thereof shall be allowed as a credit upon said note of said J. J. Haug for $348.78, of even date herewith as aforesaid; but if it shall appear that said $70.75 note is not paid, then said J. J. Haug shall pay said note of $348.78, being same date herewith, in full, when due, according to its terms." Because the plaintiff did not bring suit on the $70.75 note immediately after the execution of the said agreement the defendant claimed to be discharged from the payment of the note sued on to that extent, and this is the only question to be determined. There was a finding of facts by the court in the form of questions and answers. Those deemed material are as follows: "5th. Did plaintiff sue the note in said agreement within the time mentioned in said agreement? "Answer.-No. "6th. Did the plaintiff at the time the agreement was executed understand that the reason why plaintiff desired the condition that the note should be sued immediately was that it would give defendant an opportunity to indemnify plaintiff in case a judgment was rendered against the maker of the note? "Answer.-Yes. "7th. What time was said note sued? "Answer.-In January, of 1877. "Sth. Was the defendant injured in consequence of the neglect to sue the note in question within a reasonable time. after the execution of the agreement? "Answer.-I don't know. He might have been. "9th. If the note had been sued within a reasonable time, could defendant have protected himself from loss? "Answer. He might; it is uncertain." It is evident the court must have held that it was immaterial whether the defendant had been damaged by the failure to bring suit on the $70.75 note immediately after the writing |