Loomis v. Griffin (In re Stewart)

• Decision Date: 15 October 1889
• Citation: 43 N.W. 296,78 Iowa 482
• Parties: IN RE ASSIGNMENT OF STEWART. LOOMIS v. GRIFFIN ET AL.
• Court: Iowa Supreme Court

78 Iowa 482

43 N.W. 296

IN RE ASSIGNMENT OF STEWART.

LOOMIS

v.GRIFFIN ET AL.

Supreme Court of Iowa.

Oct. 15, 1889.

Appeal from district court, Delaware county; J. J. NEY, Judge.

Appeal from an order allowing a claim against the estate of R. F. Stewart, insolvent.J. B. Satterlee and Yoran & Arnold, for appellants.

Bronson, Carr & Le Roy, for appellee.

ROBINSON, J.

On the 12th day of October, 1887, R. F. Stewart executed an assignment, the parts of which, material for the purposes of this appeal, are as follows: “Know all men by these presents that, whereas, I, R. F. Stewart, * * * having become insolvent, and unable to wholly pay such indebtedness as has accrued against me, * * * and being desirous of so disposing of my property that the same may be used for the benefit of my creditors equally in proportion to the amount of my indebtedness to each of them, do hereby assign, transfer, and set over to F. S. Griffin * * * all and singular, each and every article and thing owned, held, and controlled by me in the nature of chattel property not exempt from sale on execution, and each and every right and credit owned, held, and belonging to me in my own right, and not exempt from execution, for the benefit of all my creditors equally, giving and granting unto my said assignee * * * full authority in the premises to act for me, and in my place and stead to sell and convert into money all and singular said property, according to law, and therefrom to pay to each and all of my creditors equally, according to their established dues, and in general to do and perform any and all acts now or hereafter by the statute in such case made and provided, and for the benefit of each and every of my creditors, ratably and in proportion to the amount of my dues to each.” Griffin at once entered upon the duties of the assignment, and gave notice, and filed an inventory and report, as required by law in cases of general assignments for the benefit of creditors. The report contemplated by section 2120 of the Code was filed January 26, 1888. On the 15th day of the next November, A. R. Loomis filed in the office of the clerk of the district court of Delaware county a petition showing that Stewart was indebted to him when the assignment was made, and that such indebtedness had not been paid, and asking for an order directing the assignee to pay him a pro rata share of the proceeds of the property assigned to him by Stewart. The petition was entitled as: “In the matter of the assignment of R. F. Stewart.” The assignee refused to allow the claim, and on the next day after it was filed Thorpe Bros. & Co., credittors of Stewart, who had filed their claim within the time required by statute, filed exceptions to it. The exceptions were overruled, and an order granted directing the assignee to allow the claim. From that order the assignee and Thorpe Bros. & Co. appeal.

1. Appellants contend that the court erred in ordering the payment of the claim in controversy, for the reason that it was not filed within the three months required by law; and it appears that the funds of the estate available to pay creditors are not sufficient to satisfy the claims filed within that time. If the assignment in controversy is valid under the statute, the position of appellants is well taken. Lumber Co. v. Meyer, 74 Iowa, 403, 38 N. W. Rep. 117;...