In re Knapp

• Court: Iowa Supreme Court
• Writing for the Court: GRANGER
• Citation: In re Knapp, 101 Iowa 488, 70 N.W. 626 (Iowa 1897)
• Decision Date: 08 April 1897
• Parties: IN RE KNAPP ET AL.

101 Iowa 488

70 N.W. 626

IN RE KNAPP ET AL.

Supreme Court of Iowa.

April 8, 1897.

Appeal from district court, Black Hawk county; A. S. Blair, Judge.

J. T. Knapp & Co., in August, 1893, were engaged in banking at Cedar Falls, Iowa. At that time, appellant, Maude Farnham, was a minor, and one I. D. Gilkey was her guardian, and, as such, had in his custody money belonging to his ward in the sum of about $548.63, which he deposited with J. T. Knapp & Co. on August 9, 1893. On the 22d day of the same month, J. T. Knapp & Co. made an assignment for the benefit of their creditors, with H. H. Clay as assignee. Within three months of the giving of the notice of the assignment, the guardian filed the claim with the assignee, and in December, 1894, a dividend of 15 per cent. was paid, in which the guardian participated, receiving that per cent. of the claim, no objection having been made to it. On the 31st day of October, 1895, Maude Farnham, having attained her majority, filed her petition in the assignment proceeding, reciting the facts as to the deposit, and that J. T. Knapp & Co. knew of its trust character, and asked that it be declared a trust fund in the hands of the assignee, and that the assignee be required to pay the same in full as a preferred claim. The assignee appeared in person and by counsel, and without in any way pleading to or assailing the petition. Evidence was taken as in a case of general denial, and upon the final submission the court disallowed the claim as follows: “Claim of Maude Farnham not allowed as a preferred claim as asked, the same having been allowed by assignee as a general claim filed by her guardian, and assets reported some two years ago, and treated as a general claim, and the alleged trust fund having gone to said estate as a general fund, and the guardian having drawn dividend thereon. To all of which said claimant then and there duly excepted.” From the order of the court the petitioner appealed. Reversed.W. H. Merner, for appellant.

Boies, Couch & Boies, for appellee.

GRANGER, J.

1. It does not seem to have been the thought of the court below, nor of counsel for appellee, but that the claim should have been established as a preferred one by timely and proper proceedings therefor. It is urged that the claim, not being filed within the three months, cannot be allowed. By this is meant the petition in this proceeding, and not the claim for payment, for that was admittedly filed within the three months. This is simply an application to have the claim already filed made a preferred one. The statute as to filing claims within the three months has no reference to such proceeding. Code, § 2126.

2. It is said that, appellant having presented her claim, by her guardian, within the three months, and then participated in the dividend, she should be held to have made a choice of two inconsistent remedies, and is estopped from now asking that her claim be preferred. In support of the claim it is said that, so far as appears from the record, she may have done this after she became of age. So far as the record gives light on that fact, it is against the conclusion that she was of age when the dividend was made. It is said the fact of her majority should be assumed in support of the judgment below. We know of no such rule. We do assume facts in support of the judgment in a law action that have support in the evidence, but we do not assume facts for that purpose essential to be shown of which there is no...