66 F.2d 971 (8th Cir. 1933), 9548-9550, Crawford County Trust & Savings Bank v. Crawford County, Iowa

Docket Nº:9548-9550.
Citation:66 F.2d 971
Party Name:CRAWFORD COUNTY TRUST & SAVINGS BANK v. CRAWFORD COUNTY, IOWA, et al. FARMERS' STATE BANK OF DOW CITY, IOWA, etc., et al. v. SAME. CRAWFORD COUNTY TRUST & SAVINGS BANK OF DENISON, IOWA, et al. v. SAME.
Case Date:July 20, 1933
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 971

66 F.2d 971 (8th Cir. 1933)

CRAWFORD COUNTY TRUST & SAVINGS BANK

v.

CRAWFORD COUNTY, IOWA, et al.

FARMERS' STATE BANK OF DOW CITY, IOWA, etc., et al.

v.

SAME.

CRAWFORD COUNTY TRUST & SAVINGS BANK OF DENISON, IOWA, et al.

v.

SAME.

Nos. 9548-9550.

United States Court of Appeals, Eighth Circuit.

July 20, 1933

Page 972

Addison G. Kistle, of Council Bluffs, Iowa (L. W. Powers, of Denison, Iowa, on the brief), for appellants.

L. H. Salinger, of Carroll, Iowa (Andrew Bell and Cloid I. Level, both of Denison, Iowa, on the brief), for appellees.

Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District judge.

STONE, Circuit Judge.

Case No. 9548 is an action by the Crawford County Trust & Savings Bank, trustee for the Crawford County State Bank, against Crawford county, Iowa, and various taxing officials of the county for refund of taxes alleged to have been illegally collected for the years 1924 and 1925. After various pleadings, the court sustained a motion to dismiss an 'Amended and Substituted Petition,' and, the plaintiff refusing to plead further, decree was entered dismissing the petition. From that decree, plaintiff brings this appeal.

Various and somewhat different matters are presented here by the opposing parties. Appellees contend that the assignment of errors is insufficient, under the rules of this court, to present for review the matters argued by appellant. The ruling complained of is in holding the amended and substituted petition failed in stating facts justifying the relief sought. The sufficiency vel non of that petition is the issue. There may be various reasons urged against such sufficiency which must be met by appellant, but that does not alter the situation that the only issue is the sufficiency of the petition. The motion contained five separately stated grounds of attack. The court gives no intimation, in its order sustaining the motion, the decree of dismissal, or otherwise, of the ground or grounds which influenced its action. In this situation, we think the assignments sufficient.

Appellees attack the jurisdiction of the trial court as a federal court mainly on the ground that the jurisdictional amount is not involved, since it is made up of amounts payable by various stockholders and no one of such amounts equals $3,000. This same contention was presented in this case on a motion to dismiss and was denied. 63 F.2d 342. We are content with the disposition thus made. In this connection the appellees here argue that the petition does not show that the bank has not been reimbursed for some part or all of the amount sued for. This is a mistake, as the petition expressly avers that 'said bank has never been reimbursed by its stockholders or any other persons on account of said payment.'

Disposition of the above contentions of appellees brings us to the matters essentially involved in the petition and the motion to dismiss and which are argued here.

The first of these has to do with the capacity of this plaintiff to bring this action. The Crawford County State Bank was the taxpayer. After it had paid these taxes, it became insolvent and went into liquidation under the state law. Therein its entire assets passed to a receiver. This receiver sold part of these assets to plaintiff and all other assets were transferred to plaintiff 'as trustee to be held and liquidated for the benefit of the creditors of the Crawford County State Bank. ' Included in this transfer to the plaintiff as trustee, were 'all claims due the bank.' Clearly the tax refunds sought here are 'claims due the bank.' We see nothing in the character of these claims which would prevent such transfer nor enforcement of them by the trustee. The petition clearly

Page 973

states that plaintiff 'is now acting as such trustee,' and that 'the claim for such illegal payment was a part of the assets of the bank which came into the hands of this plaintiff as trustee of such assets. ' This action is brought by the plaintiff, as 'trustee,' and for the purpose of enforcing this claim so coming into its hands as such. We think plaintiff has ample capacity to maintain this action.

Another issue is whether the petition shows this action to be barred by limitations (a contention in the motion to dismiss). The rule in federal courts in equitable actions is that state statutes of limitations are not controlling but will be followed in application of the doctrine of laches unless the circumstances of the particular case convince that a shorter or longer period would be just. Cooper v. Hill, 94 F. 582 (C.C.A. 8). Here, the petition asserts no sufficient extraordinary circumstances as would justify a departure from the statutory limitations, and such should be followed here. The dispute is over whether the three-year or the five-year statutory limitation is applicable, since this action was begun after three but within five years. Appellee seems to concede that the five-year limitation applies to the county, but contends that the shorter period applies to the individual defendants. The statute thus relied upon is paragraph 4 of section 11007 of the Code of Iowa. Appellees cite Beecher v. County of Clay, 52 Iowa, 140, 2 N.W. 1037, Callanan v. Madison County, 45 Iowa, 561, and Prescott v. Gonser, 34 Iowa, 175 as so holding. The position of appellant is that the Supreme Court of Iowa has determined that this character of action is governed by the five-year period statute (citing Iowa Nat. Bank v. Stewart, 214 Iowa 1229, 232 N.W. 445, 466), and that this court has applied the five-year period (citing Munn v. Des Moines Net. Bank, 18 F.2d 269), but that, if there has been no direct decision as to this matter, the question is at least doubtful and where doubtful this court will adopt the longer period (citing Payne v. Ostrus, 50 F.2d 1041, 1042, 77 A.L.R. 531 (C.C.A. 8) and Hughes v. Reed, 46 F.2d 435, 440 (C.C.A. 10)).

The two statutory provisions involved are found in section 11007 Code of Iowa 1924, and are as follows:

'11007. Period of. Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: * * *

'4. Against sheriff or other public officer. Those against a sheriff or other public officer, growing out of a liability incurred by the doing of an act in an official capacity or by the omission of an official duty, including the non-payment of money collected on execution, within three years.

'5. Unwritten contracts-- injuries to property-- fraud-- other actions * * * and all other actions not otherwise provided for in this respect, within five years.'

First, as to the cases cited by appellant as having sustained the five-year period. The Munn Case in this court involved an issue of laches on the part of the three banks involved there in bringing actions against the county treasurer, in January, 1923, to enjoin...

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