Carter v. Lee

• Decision Date: 29 January 1891
• Citation: 47 N.W. 1014,82 Iowa 26
• Parties: CARTER & DARROW, Appellees, v. A. J. LEE, Assignee, Appellant
• Court: Iowa Supreme Court

47 N.W. 1014

82 Iowa 26

CARTER & DARROW, Appellees, v. A. J. LEE, Assignee, Appellant

Supreme Court of Iowa, Des Moines

January 29, 1891

Appeal from Polk District Court.--HON. CHARLES A. BISHOP, Judge.

THE plaintiffs are creditors of a mercantile partnership named "Gus Smith & Co." The said partnership made an assignment of the partnership property to the appellant for the benefit of creditors. The plaintiffs did not file their claim as creditors within three months of the first publication of the notice of the assignment, and they commenced this proceeding to compel an allowance of their claim, and for a distributive share of the proceeds of the property the same as other creditors. An order was made in the court below in favor of the plaintiffs, and the assignee appeals.

Reversed.

Bancroft & Bowen, for appellant.

Mitchell & Dudley, for appellees.

OPINION

ROTHROCK, J.

The assignment was made by Gus Smith & Co. on the thirty-first day of October, 1888. The assignee caused notice of the assignment, and of his appointment, to be published as required by law. The first publication of the notice was on the tenth day of November, 1888. The plaintiffs were then and are now, residents of the state of New York, and they had no actual notice of the assignment until more than three months after the first publication of the notice. The account books of Gus Smith & Co. did not show that Carter & Darrow were creditors of said firm, and the said assignee had no knowledge that they were creditors, and did not, therefore notify them of the assignment by mail. The claim of Carter & Darrow consisted of two acceptances which did not become due until December 25, 1888, and January 4, 1889, respectively. On the twelfth day of February, 1889, the assignee filed with the clerk of the court a report of all claims filed with him against the said firm of Gus Smith & Co., as required by law. On the first day of July, 1889, an order was entered in said proceedings in assignment, directing the assignee to pay forty per cent. on the claims filed within three months from the date of the first publication of notice. A final report was made by the assignee, and it was ordered that he be discharged upon paying a final dividend of three and one-eighth per cent. to the creditors. The application of Carter & Darrow, to be allowed to share in the proceeds, was filed on the sixteenth day of July, 1889, but before the payment of the final dividend of three and one-eighth per cent. The assignee has sufficient money in his hands to pay the same dividend to plaintiffs as he did to other creditors, but, if such payment be made to the plaintiffs, it will decrease the amount of the dividend to the other creditors. The above are the material facts in the case. They are not in dispute, but were agreed upon by the parties.

The question for determination is, are the...