Dobler v. Bawden
| Citation | 25 N.W.2d 866,238 Iowa 76 |
| Decision Date | 11 February 1947 |
| Docket Number | 46956. |
| Parties | DOBLER v. BAWDEN. |
| Court | United States State Supreme Court of Iowa |
Geo R. Ludeman, of Mason City, for appellant.
Breese & Cornwell, of Mason City, for appellee.
The parties to this action are nonresidents of this state and are brother and sister. The defendant, Adah E. Bawden, owned certain real and personal property in this state, inherited from an aunt subject to levy and sale. Plaintiff, in 1945, commenced action against the defendant in the district court of Cerro Gordo county on an Illinois judgment, aided by attachment of defendant's Iowa property, for the purpose of enforcing and realizing on such Illinois judgment.
On January 11, 1922, defendant Adah E. Bawden, by a written assignment did 'sell, assign, transfer and set over to the First National Bank in Warren, Illinois, all of my right, title and interest' in the bond from her brother, described hereinafter. This assignment was to secure notes to that bank in something over $6,300. These notes were afterwards put in judgment by the bank, on November 12, 1931. This judgment was assigned to the plaintiff by the liquidating agent of said bank on May 29, 1941. It was revived by the plaintiff against the defendant June 22, 1942 in the Illinois court. The assignment of the judgment to Dobler was, in part, 'the First National Bank in Warren, Illinois, does hereby sell, transfer, assign, and set over to Manley T. H. Dobler' a judgment which is described. 'In witness whereof the First National Bank in Warren, Illinois, has caused its corporate seal to be hereto affixed and has caused its name to be signed to these presents by A. B. Meyer, its liquidating agent, this 29th day of May, A. D. 1941.' The acknowledgment of the assignment states that the execution of the instrument and the affixing of the corporate seal was 'pursuant to the authority given by the stockholders of said corporation' and 'as the free and voluntary act and deed of said corporation'. Later in the same year, on November 6, 1941, the plaintiff started suit in Jo Daviess county, Illinois, to revive the judgment. Defendant, Adah E. Bawden, appeared and answered the complaint in the Illinois court and denied the bank had assigned the judgment. Trial was had and the court found that the original judgment had been assigned to plaintiff, and judgment was rendered in favor of the plaintiff and against the defendant for $10,047.80. This is the foreign judgment sued on by the plaintiff in the present action.
Adah E. Bawden, defendant in this action, pleads herein as a defense to plaintiff's judgment, the special statute of limitations, section 615.1, Code of 1946, section 11033.1, Code of 1939, and filed a counterclaim against the plaintiff on a contract between the parties dealing with the settlement of their mother's estate. This was a written agreement, signed in 1916, between plaintiff and defendant, which provided that Manley T. H. Dobler, the plaintiff herein, was to have the entire estate of his mother, Ellen Dobler, and was to pay $6,500 to defendant, Adah E. Bawden, out of that estate sixty days after the death of the mother. There were other payments provided for, and the agreement provided for the giving of a bond by plaintiff to defendant, with sureties, in the penal sum of $6,500 to secure payment of the $6,500 above mentioned. This was the bond later assigned to the National Bank in Warren, Illinois.
The matters in issue are: 1. Claim by plaintiff against defendant on the illinois judgment. 2. Counterclaim by defendant against plaintiff on the $6,500 bond given by him to her to secure his debt on the contract executed in 1916. 3. Claim by plaintiff against defendant on a half interest in eighty acres alleged by him to have been appropriated and sold, but belonging to the deceased mother's estate.
The case came on for trial September 17, 1945, in the district court of Cerro Gordo county, and on February 20, 1946 the court entered its ruling and judgment computing the amounts as follows: Sustaining the plaintiff's petition on the Illinois judgment to the amount of $11,887.19. From that amount was deducted the indebtedness from plaintiff to the defendant of $8667.78, leaving a balance still due plaintiff from defendant of $3219.41, for which amount judgment was entered in favor of the plaintiff. This indebtedness of the plaintiff to the defendant consisted of $6,500 owing on the 1916 contract, less $1500, the value of a half interest in eighty acres appropriated and transferred by Mrs. Bawden as of March 18, 1933, which would leave a balance of principal still unpaid to the defendant of $5000 with interest at 5% per annum since June 18, 1931, which totals the above amount of $8667.78. From this finding and judgment of the court both parties appeal.
I. Defendant having first appealed, we will denominate her appellant, and her appeal will be first considered. She asserts that the claim of the plaintiff, Dobler, on the Illinois judgment was barred by the provisions of section 615.1, Code of 1946, section 11033.1, Code of 1939, and that the court was in error in not so holding.
Section 615.1 is as follows:
'From and after January 1, 1934, no judgment in an action for the foreclosure of a real estate mortgage or deed of trust or in any action on a claim for rent or judgment assigned by a receiver of a closed bank or rendered upon credits assigned by the receiver of a closed bank when the assignee is not a trustee for depositors or creditors of the bank the Reconstruction Finance Corporation or any other federal governmental agency to which the bank or the receiver is or may be indebted shall be enforced and no execution issued thereon and no force or vitality given thereto for any purpose other than as a setoff or counterclaim after the expiration of a period of two years from the entry thereof.' 45th G.A., Ch. 178.
The Illinois judgment was rendered November 12, 1931, and renewed June 22, 1942, and since the plaintiff commenced his action in Iowa on March 5, 1945, more than two years had expired between the rendition of the second judgment and the beginning of the suit. With the assignment of the judgment to the plaintiff by the liquidating agent of the bank, was also assigned the bond which he had given defendant in 1916 with sureties in the amount of $6,500. If the special statute of limitations applies then there can be no recovery on plaintiff's Illinois judgment. But does the statute of limitations apply to this form of judgment? The statute under consideration refers to a judgment assigned by a receiver of a closed bank.
The bank was in process of liquidation, and the person making the assignment of the original judgment for the bank was not designated as a receiver and in fact was not such, but he was what is denominated a 'liquidating agent'. In the assignment heretofore set out it will be noticed that such assignment is by the bank under its corporate seal, by A. B. Meyer, its liquidating agent. It is also to be noted that in the acknowledgment the execution of the instrument was pursuant to authority of the stockholders of said corporation. The bank which transferred the judgment against Adah E. Bawden was a national bank and governed by the statutes relating to such banks. United States statutes, section 181, 12 U.S.C.A., R.S. § 5220, provides for the voluntary dissolution and the appointment of a liquidating agent or committee; provides that any association may go into liquidation and be closed by a vote of its shareholders owning two-thirds of its stock. The shareholders then designate one or more persons to act as a liquidating agent or committee, who shall conduct the liquidation in accordance with law and under the supervision of the board of directors. Further provisions of the section provide for reports to the comptroller of the currency and to the shareholders, and for special meetings of the latter, and for examinations by the comptroller. So it is apparent that the liquidating agent of a national bank, acting under the federal laws relating to such bank, is not, by such statutes, classified as a receiver.
Receiverships of such banks are provided for in section 191, 12 U.S.C.A., which states the general grounds for the appointment of a receiver. The receivership in these cases is not voluntary. The distinction between the two is that the settlement of affairs of the bank by voluntary liquidation is in the hands of the corporation itself, while under the receivership the disposition of its assets and the control of its affairs, through this method of involuntary liquidation, are in the hands of the comptroller of the currency and, to some extent, of the courts. See sections 192, 193, 194, 195 and 197, 12 U.S.C.A.
A receiver in general is defined as a person appointed by the court to take into his custody the control and management of the property or funds of another, pending judicial action concerning them. A person authorized by an out-of-court agreement to sell certain property and account for the proceeds is, in no case a receiver of the court. 53 C.J. 17 Receivers. Various definitions are cited in the text, but he is considered a court official and is appointed by the court. To the same effect see Ballentine's Law Dictionary, page 1093; Bouv. Law Dict., Rawle's Third Rev., page 2825. A liquidating committee is not a substitute for a receiver. 'While the liquidating committee is a proper agency for winding up of the affairs of the bank, yet it is not a substitute for a receiver.' Waldrop v. Martin, 237 Ala. 556, 188 So. 59, 620. Citing Holland Banking Co. v. Continental Nat. Bank, D.C., 43 F.2d 640, 641. In the Holland Banking Co. case it is stated, quoting the United States statute above referred to, 12 U.S.C.A....
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