Cooper v. Erickson

• Decision Date: 24 November 1931
• Docket Number: No. 40996.,40996.
• Citation: 239 N.W. 87,213 Iowa 448
• Parties: COOPER v. ERICKSON ET AL. (MILLER, INTERVENER).
• Court: Iowa Supreme Court

213 Iowa 448

239 N.W. 87

COOPER

v.ERICKSON ET AL. (MILLER, INTERVENER).

No. 40996.

Supreme Court of Iowa.

Nov. 24, 1931.

Appeal from District Court, Plymouth County; C. C. Bradley, Judge.

The plaintiff, first having been duly appointed receiver of the Farmers' Bank of Brunsville, brought this action against Hans Erickson on the theory that he was a partner and therefore personally liable to the creditors of the bank for partnership debts. Anna Erickson, plaintiff claimed, had received from the alleged partner, Hans Erickson, certain real estate without consideration, and in fraud of the bank's creditors. Hence, the plaintiff sought to set aside that conveyance. J. G. Miller, the intervener, claimed to have assignments from certain of said partnership creditors, and therefore asked: First, for judgment against Hans Erickson on those claims; and, second, that the land conveyed to Anna Erickson be subjected to the payment of those debts. Hans Erickson and Anna Erickson filed one motion to dismiss the petition of intervention, and another to dismiss the plaintiff's petition. These motions were sustained and judgment entered accordingly. Therefore, the plaintiff and intervener appeal.

Affirmed.Roseberry & Roseberry, of Le Mars, for plaintiff-appellant.

J. T. Keenan, of Le Mars, for intervener-appellant.

Nelson Miller, of Le Mars, and Henderson, Hatfield & Wadden, of Sioux City, for appellees.

KINDIG, J.

One E. Boysen operated an unincorporated bank at Brunsville, Iowa, prior to and until January 1, 1925. On September 21, 1929, a receiver was appointed for the bank by the Plymouth county district court, because of the institution's insolvency. Immediately preceding the appointment of the receiver; that is to say, on September 20, 1929, the defendant-appellee Hans Erickson conveyed to his daughter, the defendant-appellee Anna Erickson, 240 acres of land in Plymouth county. So, the plaintiff-appellant, as receiver of the aforesaid bank, commenced this action on September 24, 1929, to obtain the following relief: First, a judgment against the defendant-appellee Hans Erickson on behalf of the bank's creditors, on the theory that the bank was operated by an actual or ostensible copartnership consisting of the said Erickson and the above-named Boysen; and, second, a nullification of the conveyance from the appellee Hans Erickson to the appellee Anna Erickson, on the theory that the transfer was without consideration and made to defraud creditors.

Thereafter, on April 14, 1930, a petition of intervention was filed by the intervener-appellant, J. G. Miller. In his petition, the intervener sought, on behalf of certain creditors whose claims had been assigned to him, relief similar to that claimed by the appellant receiver against both appellees. It is alleged in the petition of intervention that the right to maintain the aforesaid action is personal to the intervener and his assignors, and therefore different and more complete than the power of the appellant receiver so to do. Furthermore, the intervener in the petition of intervention states “that he waives objection and consents to the granting to the receiver,” appellant, “the benefits of the relief asked in the” original “petition.” Such waiver and consent, however, is expressly limited to the claims named in the petition of intervention and does not purport to apply to all creditors. Moreover, it is to be noted that the intervener does not assign his rights to the receiver, nor does he waive objection and give consent absolutely that the receiver may recover; but rather the intervener waives objection and consents to the granting of the power to recover to the receiver. Following the petition of intervention, the appellant receiver amended his petition: First, by making a part thereof the petition of intervention by reference; and, second, by dismissing from his petition all right to recover on any claims not assigned to the intervener. Obviously, then, neither the receiver nor the intervener purport to represent all the creditors, but only those whose claims had been assigned to the intervener.

An attack was made upon the original petition and the petition of intervention by the appellees, Hans Erickson and Anna Erickson. The attack on the petition of intervention was by motion to strike, filed October 9, 1930. This motion was based on the ground that the petition of intervention attempts to join issues at law with issues in equity. Other matters are mentioned in the motion, but we find it unnecessary to discuss them. Appellees' motion to dismiss the petition was filed September 22, 1930, and, so far as material, makes the following attacks upon the receiver's pleading: First, that there is a misjoinder of causes of action, one in equity and the other at law; second, that it does not appear in the petition that the receiver was authorized when appointed to bring this suit against the appellants; third, that the receiver does not have the authority or capacity to maintain this proceeding against the appellants; fourth, that the receiver has an adequate remedy at law which he has not pursued; and, fifth, that the receiver should first obtain judgment against the appellee Hans Erickson before he can maintain an equitable proceeding to set aside the conveyance of the aforesaid land to the appellee Anna Erickson.

That, in a general way, sets forth the controversy here involved.

[1] I. For convenience, the appellee Anna Erickson's motion against the receiver's petition is first considered.

Manifestly, according to the petition, the receiver has obtained no judgment against the appellee Hans Erickson. No adjudication has been made that the appellee Erickson was a partner in the banking business before described. Nevertheless the receiver attempts in his petition to set aside the conveyance of land from the appellee Hans Erickson to the appellee Anna Erickson. If the receiver did not obtain a judgment in the premises against Hans Erickson, there would be no occasion or basis for setting aside the conveyance. It is obvious that the receiver is not proceeding against the land under an attachment, but rather he seeks to set aside the conveyance in a general equitable proceeding. His action is in the nature of a creditor's bill. Under these circumstances it is necessary that the receiver first obtain, if he can, a judgment against the alleged debtor Hans Erickson, the appellee, or have a lien on the real estate involved. Drahos v. Kopesky, 132 Iowa, 497. 109 N. W. 1021;Peterson v. Gittings, 107 Iowa, 306, 77 N. W. 1056;Smith v. Nursery & Seed Co., 109 Iowa, 51, 79 N. W. 457;Clark v. Raymond, 84 Iowa, 251, 50 N. W. 1068;Goode v. Garrity, 75 Iowa, 713, 38 N. W. 150. Section 11815 of the 1927 Code contains this provision: “At any time after the rendition of a judgment, an action by equitable proceedings may be brought to subject any property, money, rights, credits, or interest therein belonging to the defendant to the satisfaction of such judgment. * * *” Thus it is seen that the proceeding contemplated in the foregoing statute only can be had after “the rendition of a judgment.” Faivre v. Gillman, 84 Iowa, 573, 51 N. W. 46. Other methods for reaching property fraudulently conveyed are provided by sections 12104 to 12106, both inclusive, of the 1927 Code, which do not require a prior judgment. That statutory method is by attachment. Porter v. Wingert, 200 Iowa, 1371, 206 N. W. 295;Pace v. Mason, 206 Iowa, 794 (local citation 803), 221 N. W. 455.

Upon the subject under discussion, we said in Federal Reserve Bank v. Geannoulis, 203 Iowa, 1385, reading on page 1388, 214 N. W. 576, 578: “A number of our early Iowa decisions held that, under these circumstances [where there was no prior judgment], the original claim must be put into judgment before an action on a creditor's bill could be maintained. Later we held that under certain circumstances...