In re Receivership of Bank of Hamburg

• Decision Date: 01 July 1927
• Docket Number: 37916
• Citation: 214 N.W. 561,203 Iowa 1399
• Parties: IN RE RECEIVERSHIP OF BANK OF HAMBURG. v. JOHN LINGO, Receiver, Appellant FRED RISSMAN, Appellee,
• Court: Iowa Supreme Court

214 N.W. 561

203 Iowa 1399

IN RE RECEIVERSHIP OF BANK OF HAMBURG.

FRED RISSMAN, Appellee, v. JOHN LINGO, Receiver, Appellant

No. 37916

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Fremont District Court.--H. J. MANTZ, Judge.

Appeal by the receiver of an insolvent bank from an order permitting a claimant to file a claim after the expiration of the time fixed by the court for the filing of claims.--Dismissed.

Appeal Dismissed.

Ferguson Barnes & Ferguson, for appellant.

L. R Forsyth and Genung & Genung, for appellee.

VERMILION J. EVANS, C. J., and FAVILLE, DE GRAFF, MORLING, and KINDIG JJ., concur. STEVENS, J., takes no part.

OPINION

VERMILION, J.

The appellant is the receiver of an insolvent private bank. After the expiration of the time fixed by the court for the filing of claims in the receivership proceedings, the appellee presented his claim, based upon a certificate of deposit purporting to have been issued by the bank, and asked that he be permitted to prove his claim and present to the court any excuse he had for not sooner filing the claim, and that it be allowed. He pleaded facts which he claimed entitled him to have his claim allowed, notwithstanding the fact that it was not filed within the time fixed by the court for the filing of claims.

The receiver resisted the application for the filing of the claim. The issue so raised was heard on an agreed statement of facts. The court below entered an order that the appellee "be permitted to file his claim against the receivership and prove the same upon its merits, and this order is made for the sole purpose of permitting the filing and proving of said claim, this court not passing upon the merits thereof." It is from this order that the appeal is taken.

Although the question is not raised by the appellee, we are constrained to say that the appeal will not lie.

This right of appeal must be found in the statute, if at all. By Section 12823, Code of 1924, an appeal may be taken from an order "affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken;" and also from "an intermediate order involving the merits or materially affecting the final decision."

We had these provisions under consideration in Schoenhofen Brewing Co. v. Giffey, 162 Iowa 204, 143 N.W. 1017, where, in an action upon certain promissory notes, a corporation, claiming to be the real debtor for which the makers of the notes, the defendants, were but sureties, asked to be joined as a defendant, and presented a counterclaim. The appeal was from the refusal of the court to vacate an order permitting the corporation to appear, and to strike the counterclaim. We said:

"We are satisfied that every right of plaintiff, the appellant, can be fully protected by the final judgment, when it shall be entered in this case, and that by appeal from it, should it be adverse to it, this appellant is entitled to have reviewed every ruling of the trial court to which exceptions shall be taken, included in which would be the questions involved in the present appeal. We are therefore of the opinion that this appeal cannot lie."

We have many times said that it is not the policy of the law to permit either party to a controversy to prolong litigation and embarrass the course of justice by prosecuting an appeal from every interlocutory ruling by the trial court,...