G.M. How & Co. v. Jones
| Decision Date | 07 December 1882 |
| Citation | 14 N.W. 193,60 Iowa 70 |
| Parties | How & Co. ET AL. v. JONES |
| Court | Iowa Supreme Court |
Appeal from Marshall Circuit Court.
THIS is an appeal of H. E. J. Boardman, receiver in case of How & Co. and Greer & Co., from a decree requiring him to pay over to the clerk of the court the amount of money paid to and received by him, found by the court to be $ 1,308.95. The facts are stated in the opinion.
REVERSED.
J. H Blair and A. C. Daly, for appellant.
Caswell & Meeker, for appellee.
This proceeding grows out of the case of George M. How & Co and others v. Jones, 57 Iowa 130, 8 N.W. 451 to which for the facts, so far as applicable, reference is now made. In the main action of How & Co. and others v. Jones, H. E. J. Boardman, was on the 10th day of April, 1877, in vacation, appointed receiver. Afterward Caswell & Meeker and S. Binford intervened and filed a motion to remove the receiver. On the 6th day of August, 1879, in vacation, the court decreed that the intervenors had no rights in the property, and denied the motion to remove the receiver, and ordered that the receiver apply the money in his hands to the payment of plaintiff's claims, and that he make report to the court at the next term. This decree gave all parties the right to move for a new trial at the next term. On the first day of the next term, being the 20th day of October, 1879, the intervenors filed a motion for a new trial, and on the 7th day of November, 1879, this motion was sustained, and the decree was so far modified as to allow Caswell & Meeker the sum of one thousand dollars and Binford dollars; but, on the 14th day of January, 1880, the entry making this modification was vacated, so that the decree was reinstated as originally entered. On the first day of the October term, 1879, Boardman filed his report as receiver, showing that there had come into his hands $ 1,109.30, and claiming as expenses $ 246.85, and showing that he had paid to plaintiff's $ 862.45. The intervenors filed objections to the report. On January 14, 1880, it was ordered that the intervenor's objections to report of receiver be continued for hearing to a subsequent term. On January 15, 1880, the intervenors appealed from the decree finding that they had no rights in the property, and from the order refusing to discharge the receiver. The receiver was not made a party to this appeal. This appeal is the one decided in 57 Iowa 130.
When the cause came up in the court below upon procedendo, for decree in accordance with the opinion. (See 57 Iowa 142), the plaintiffs, George M. How & Co. and J. G. Greer & Co., filed a supplemental petition alleging in substance that, after the decree was entered in the main cause, the receiver, in pursuance of that decree paid to George M. How & Co., on August 18, 1879, $ 714.34, and to J. G. Greer & Co., the same day, $ 148.11, and that the receiver has properly and in good faith expended in labor and costs $ 275.
Plaintiffs pray that the final decree be that the receiver deliver to the clerk as required in the Supreme Court's opinion, excepting the said payments made to plaintiffs, and the said $ 275; that judgment be rendered against each of the plaintiffs separately for the amount actually received. On January 11, 1882, the receiver filed his petition duly verified as follows: has been without any request or consent on the part of petitioner. Petitioner also avers that the delay is prejudicial to him, and that questions pertaining to allowance of his reports and claims are being presented or arising, which renders it necessary to place before the court in a formal manner the material facts pertaining to the receiver, and ask the proper relief. Petitioner avers the following facts, and asks permission to prove the same, and that the other parties to the above entitled cause, including the intervenors, Caswell & Meeker and S. Binford, make answers hereto as defendants.
On the 10th of April, 1877, petitioner was appointed receiver in the above case of George M. How et al. v. E. R. Jones, Clerk. In the order of appointment the receiver was required to collect, manage and control the notes and claims, and pay over the proceeds according to the nature of the property and exigency of the case. On the 13th of May, 1877, Caswell & Meeker and S. Binford and others intervened, claiming a prior right. The receiver proceeded, as shown by the reports, to collect by suit, in good faith, and necessarily expended as shown in said reports. On May 6, 1879, the main case was submitted to be decided in vacation as of said May term, 1879. At the time of submission the counsel for intervenors especially requested that the receiver be ordered to pay over in vacation on the rendition of decree, and it was agreed to. August 6, 1879, a decree was rendered holding that plaintiffs, George M. How & Co. et al., had the prior right, and finding against all the claims of all the intervenors, and ordering this receiver to apply the money in his hands to the payment of plaintiff's claims, and make report at the next (Oct.) term of any notes uncollected.
Thereupon, August 18, 1879, receiver paid over to plaintiffs, as shown in his October, 1879, report, $ 862.45. No appeal had been taken at that date, nor pretense of same, nor any request by intervenors or counsel to receiver not to pay over, and receiver would have been in contempt if he had not obeyed the mandate of the court. The receiver made a report of his doings and filed the same October 2, 1879, the October term commencing October 20, 1879. October 20, 1879, intervenors filed a motion for a new trial. Said motion was not sustained. October 23, 1879, plaintiffs moved to confirm the report of the receiver. October 24, 1879, intervenors filed objections to the approval of report of receiver. November 7, 1879, decree of August 6, 1879, on motion was modified so far as to allow assignment of Caswell & Meeker in sum of $ 1,000, also S. Binford in sum; also, ordered that plaintiffs pay back to receiver the money received by them, in sixty days. Exceptions ordered to be settled at the January adjourned term, 1880, of the court. January 12, 1880, plaintiffs filed a motion to vacate the record of November 7, 1879. January 14, 1880, the above motion to vacate record of November 7, 1879, was sustained. January 14, 1880, the exceptions to the report of the receiver were continued for hearing at a subsequent term. January 15, 1880, intervenors appealed to the Supreme Court, but did not make the receiver a party to the appeal, nor serve notice on the receiver of the appeal, nor was there any decision as to receiver which could be appealed from, nor any exception taken to the continuance as to receiver's report. At subsequent terms the receiver endeavored to obtain a hearing on his report, but the court preferred it to stand till decision of the Supreme Court.
The main cause was decided in the Supreme Court about April 6 1881, and the petition for rehearing was decided about October, 1881. At this December term, 1881, the receiver filed final report in which, by inadvertence of the scribe, the word "no" was omitted. The report should read that "no receipts or disbursements had been made since the last report." Receiver requests that he be no longer delayed, and that the court proceed by reference to a master, or by the court itself, to adjudicate the several reports of the receiver, and discharge himself and his bond. Petitioner now also avers that by oversight the report of October, 1879, and final report, shows that $ 150 other costs had been collected, when, in fact, the same should read $ 100, and the...
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