Inc. Town of Conway v. Conway, 33717.

• Decision Date: 31 December 1920
• Docket Number: No. 33717.,33717.
• Citation: Inc. Town of Conway v. Conway, 190 Iowa 563, 180 N.W. 677 (Iowa 1920)
• Parties: INCORPORATED TOWN OF CONWAY et al. v. CONWAY. ANDERSON et al. v. CRUM.
• Court: Iowa Supreme Court

190 Iowa 563

180 N.W. 677

INCORPORATED TOWN OF CONWAY et al.

v.CONWAY.

ANDERSON et al.

v.CRUM.

No. 33717.

Supreme Court of Iowa.

Dec. 31, 1920.

Appeal from District Court, Taylor County; H. K. Evans, Judge.

Action by the incorporated town of Conway and its treasurer, against a former treasurer and the sureties on his bond, for the funds of said town not accounted for. The sureties on the bond answered, and, among other things, interposed a plea in abatement. Later they asked that the receiver of the Conway Savings Bank, in which the moneys had been deposited, be made a party defendant, and then, by cross-petition, prayed that the claim, less dividends paid by the receiver, be established as a preferred claim. Judgment was entered against the treasurer and sureties on the bond for an unpaid balance, the cross-petition of the sureties on the bond dismissed, and an order entered that they be subrogated to any additional dividends declared by the receiver on the claim filed. Thereupon the sureties perfected an appeal “from that part of the judgment of the district court entered in this cause on the 3d day of June, 1920, whereby the cross-petition of the defendants Henry Burge and Oliver Anderson against W. E. Crum, receiver of the Conway Savings Bank, was dismissed.” Affirmed.W. M. Jackson and M. R. Brant, both of Bedford, for appellants.

H. P. Jaqua and Frank Wisdom, both of Bedford, for appellee Crum.

R. T. Burrell, of Bedford, for appellee Town of Conway.

LADD, J.

W. A. Conway was appointed treasurer of the incorporated town of Conway, April 20, 1916, and thereafter duly qualified as such. His official bond as such treasurer, in the sum of $1,500, was signed by Henry Burge and Oliver Anderson as sureties. The funds coming into his hands were deposited with the Conway Savings Bank in the name “Town of Conway.” On April 20, 1918, demand was made by the town and his successor as treasurer, for all moneys of the town received by him and not paid out on warrants as treasurer. At the time this money was deposited, Conway was cashier of the bank, Anderson was its president,and Burge one of its directors, and they were aware, at the time of executing the bond, that he intended to keep the funds of the town in said bank. All believed the bank solvent, though it was then insolvent, and a receiver was appointed to take possession of its assets on May 23, 1918. On July 8th following, the town, with its treasurer, Cooper, filed a claim with the receiver for $833.80 which was allowed as a general claim aginst the estate; no claim to preference being asserted. As Conway failed to pay upon demand, this action was brought against the treasurer and sureties, praying judgment against the sureties on his bond. He did not answer, but his sureties, on October 11, 1919, moved that the receiver be made a party defendant, and filed a cross-petition December 16th of the same year, praying that the unpaid balance be given preference and paid in full from the assets in the hands of the receiver. The answer of the receiver put the allegations of the cross-petition in issue. It appears from the facts stipulated that the funds on deposit in the bank, passing to the receiver, amounted to $8,418.33, and were not sufficient to pay the creditors in full; that an order entered by the district court July 27, 1918, directed that all claims not filed with the receiver on or before the 1st day of September, 1918, shall be barred from participating in the assets of the bank; and that no claim was asserted by the sureties prior to filing their cross-petition over 1 1/2 years after the appointment of a receiver and over 14 months subsequent to the above order. The money received by Conway as treasurer, when deposited, passed to and became a part of the general assets of said bank, of which he was the cashier, and, “at the respective dates of deposit, swelled the general assets of the bank in the amount so deposited, and commingled with the general deposits and indistinguishable from the funds created by other depositors.” Dividends amounting to $365.90 had been declared by the receiver and applied on the amount sued for.

[1] Only two rulings are complained of, the first being that part of the judgment, in effect overruling the plea in abatement, because of another action pending. The appeal does not include this phase of the judgment, for the notice of appeal limits the same by specifying that it is “from that part of the judgment of the district court entered in this cause *** whereby the cross-petition of ...