Ross v. Long
| Decision Date | 26 December 1934 |
| Docket Number | 42628 |
| Citation | 258 N.W. 94,219 Iowa 471 |
| Parties | H. E. ROSS, Appellee, v. ORISON S. LONG, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 5, 1935.
Appeal from Page District Court.--ERNEST M. MILLER, Judge.
This is an action aided by attachment commenced by H. E. Ross, as conservator of the Shenandoah National Bank, as plaintiff against Orison S. Long, upon three promissory notes aggregating $ 5,551. A motion filed by defendant to dissolve the attachment was overruled by the court. The defendant appeals.
Affirmed.
Addison G. Kistle and Henry Read, for appellant.
Wilson & Wilson, for appellee.
The defendant in December, 1932, executed and delivered to the Shenandoah National Bank of Shenandoah, Iowa, his three promissory notes aggregating $ 5,551. The record shows that H. E. Ross is the duly appointed, acting and qualified conservator of the Shenandoah National Bank, and as such is the holder of the promissory notes involved in this litigation. He commenced this action upon the notes, and asked for a writ of attachment. The defendant filed a motion, based upon several grounds, asking for a dissolution of the attachment. The motion was overruled, and defendant appeals.
Some of the errors assigned were not raised in the lower court; all the others, except the one hereinafter considered, were also urged in the case of Carson, Pirie, Scott & Co. v. Long, 219 Iowa 444, 257 N.W. 815. The opinion in that case is controlling upon all questions raised in this case except the one herein considered.
The additional error assigned here is the court's failure to dissolve the attachment because H. E. Ross, the conservator of said bank, had no authority to bring the action or file the attachment bond, and that the real party in interest was the Shenandoah National Bank.
The difficulty with defendant's position is that, in the consideration of the motion, the matters stated in the petition are considered true. The allegations of the petition show "that said bank is now operating and doing business as a banking corporation under the management of H. E. Ross, duly appointed conservator thereof by the comptroller of the currency of the United States; that said H. E. Ross is now the duly qualified and acting conservator of said Shenandoah National Bank and as such is the holder of the choses in action referred to in this petition and is entitled to bring suit thereon."
The representative capacity of plaintiff may be alleged generally or as a legal conclusion. Code, section 11207. Such an allegation, in effect, makes the conservator a trustee for the bank, and as such the action may be commenced and prosecuted by him. Code, sections 10968 and 9511; Windsor v. Barnett, 201 Iowa 1226, 207 N.W. 362.
The federal statute relating to the appointment, powers, and duties of a conservator of a national bank provides as follows:
Section 203 of the National Act of March 9, 1933 (Bank Conservation Act, section 203 [12 USCA, section 203]. The language of this statute authorizes the conservator under the direction of the comptroller to take possession of such books records, and assets of every description, and take such action as may be necessary to conserve the assets of such bank. It also gives the conservator all the rights, powers, and privileges given receivers of insolvent national banks. It is the well-settled rule of law that it is part of the duties of a receiver to collect the assets of the bank, and, in pursuance of this authority and duty, he has a right to commence an action for the collection of the securities in his...
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