State ex rel. Fletcher v. Southern Sur. Co. of New York
| Decision Date | 04 May 1937 |
| Docket Number | 43605. |
| Citation | 273 N.W. 129,223 Iowa 558 |
| Parties | STATE ex rel. FLETCHER, Atty. Gen., v. SOUTHERN SURETY CO. OF NEW YORK et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; John J. Halloran, Judge.
This is an action in ancillary receivership proceedings growing out of the liquidation of the Southern Surety Company. of New York, a corporation organized under the laws of that state. Appellant as the liquidator under the laws of the State of New York, for this company, intervened, claiming that the funds in the hands of the ancillary receiver should be sent to him and distributed under the law of that state. Appellee Murphy is the local receiver, and McQuillen, appellee, is a creditor of the defunct corporation. Other creditors whose interests are involved in this cause filed claims, as will appear in the opinion which follows. The trial court sustained the contention of appellees to the general effect that the funds should remain in Iowa for distribution under the ancillary receivership, and from this decision the New York liquidator has attempted to appeal.
Appeal dismissed.
Hallagan, Fountain, Stewart & Cless, of Des Moines, and Cook & Balluff, of Davenport, for intervener, appellant.
Parrish Guthrie, Watters & Colflesh, of Des Moines, for ancillary receiver, appellee.
Kelly Shuttleworth & McManus, of Des Moines, and Kenline, Roedell & Hoffman, of Dubuque, for claimant and creditor, appellee.
An exhaustive examination of the record in this case persuades us that the trial court had before it a question of outstanding importance. We proceed to state the reasons why we may not express an opinion on the correctness of the trial court's action and why its decision must await another occasion.
The Southern Surety Company, a foreign corporation with its principal offices in New York, was authorized to transact business in this state, and did so for a considerable period. On March 22, 1932, the courts of the parent state, finding the corporation insolvent, dissolved the corporation appointed appellant liquidator, and vested in him the title to all the assets of the company wherever situated. The next day the Attorney General of this state started the proceedings which resulted in the controversy before us, and in which Clark was appointed ancillary receiver of the assets of the defunct company in this state, the order of appointment directing the receiver to conserve the assets until further orders of the court. Appellee Murphy succeeded Clark as receiver and is now acting as such.
During the course of the proceedings pending in the courts of this state, various creditors of the surety company filed their claims, which were allowed at various times. In addition to one filed by McQuillen, who is one of the appellees herein, there were filed and allowed the claims of one Popp, in his capacity as trustee; claim of Wetterling; claim of the Ottumwa Sand Company; claim of Kelly; claim of MacX Feed Milling Company. These claims were all filed within the time fixed by the court and, as stated, duly allowed. There was likewise filed the claim of one Bates, superintendent of banking, which he insists was allowed. Appellant strenuously asserts that it was not allowed. We do not deem it necessary to decide this controversy in the light of what follows.
When the appellant intervened in the proceedings pending in this state, the trial court directed that a notice of the filing of such petition be given to all creditors whose claims had been allowed, and to all creditors whose claims had been disallowed but who had filed objections to such disallowance, fixing the time within which such objections to the petition of intervention might be filed. Notice having been served in compliance with this order, various claimants filed objections, among them the following: Popp, trustee; Wetterling, whose claim was first disallowed and later allowed; Ottumwa Sand Company; MacX Feed Milling Company; Kelly; and D. W. Bates, superintendent of banking. On December 31, 1935, the district court set down for hearing the petition of intervention and again directed notice to be given of the date fixed. On January 8, 1936, after due notice, the matter came on for hearing and was submitted on stipulation of facts entered into by the attorneys for McQuillen, appellee, Ray Murphy, local receiver, and Louis H. Pink, the New York liquidator and intervening appellant herein. No other parties appeared to take part in the hearing. On the same day, January 8, 1936, the court entered its further order directing that notice be given to all creditors who had filed resistances to the petition of intervention to file written briefs on or before the 18th day of January, 1936. Thereafter, on the 17th day of February, 1936, the trial court entered of record the order from which this appeal was attempted, which order denied and dismissed the petition of intervention. On the 4th day of March, 1936, intervening appellant Pink attempted to appeal from the final order of the court by serving notice of appeal upon Ray Murphy, local receiver, McQuillen, appellee, and the clerk of the district court of Polk county. No notice of appeal was served upon Fletcher, the plaintiff, nor upon his successor in office; and no notice was served upon Popp, trustee, Wetterling, Ottumwa Sand Company, Kelly, MacX Feed Milling Company, or D. W. Bates, superintendent of banking.
McQuillen, appellee, moved to dismiss this appeal on the ground that, no notice having been served on the parties mentioned, this court has no jurisdiction to entertain or decide this appeal. Similar motions were filed by Popp, trustee, and by Bates, superintendent of banking. These motions are met by a resistance on the part of the New York liquidator, which resistance, in effect, admits McQuillen's statement of what the record shows except in so far as it has to deal with the claim of Bates, superintendent of banking. This claim appellant says was not filed or allowed.
In effect, appellant's resistance is based on the theory that, these various claimants having been notified of the time when the court would hear the matter of intervention on the stipulation above referred to, they thereby were in default in such sense that they are not now in a position to claim that notice of appeal should have been served upon them. This idea is elaborated somewhat by the claim that they permitted by their attitude, their interests to be represented by Ray Murphy, local receiver, and are bound by the results which followed the efforts of such receiver. It is claimed further that, by acting as they did, the claimants had abandoned their separate resistances and were therefore not " adverse parties" within the meaning of Code, § 12837. Appellant likewise claims something for the fact that the findings of the trial court, by setting out the names of the parties who had appeared at the hearing and those who had not, determined that those who took no part in the hearing had thereby, in effect, withdrawn from the controversy and were no longer adversary parties.
In justification or excuse for not having made the Attorney General upon whose relation this cause was started a party, appellant says that the only part the Attorney General took was to set the machinery of the law in motion by instituting these receivership proceedings; that Fletcher having been succeeded in office by another Attorney General, neither the original plaintiff nor his successor had any such interest in the outcome as would make them " adverse parties" within the meaning of the Code section above cited. In a word, appellant's position on these motions to dismiss is that only those who took an active part in the hearings on the petition of intervention and the stipulation of facts upon which the trial court made its order had any adverse interest or had any right to be considered in the further progress of this case to this court.
We address ourselves to the question thus presented.
Section 11174 of the Code provides: " Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause, and before the trial commences."
The method of taking an appeal to this court is set forth in Code, § 12837, as follows: " An appeal is taken and perfected by the service of a notice in writing on the adverse party, his agent, or any attorney who appeared for him in the case in the court below, and by filing said notice with return of service indorsed thereon or attached thereto with the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part."
An examination of our decisions indicates that the question before us has been met with more or less directness, and has been decided adversely to the position taken by the appellant-intervener in his resistance to the motions.
We are content to base our disposal of the question on In re Assignment of Lounsberry, 208 Iowa, 596, from which we quote at length, beginning at page 598, 226 N.W. 140:
" Appellant in argument says it ‘ has nowhere contended that the parties moving to dismiss were not interested in the appeal, but appellant has contended, and still contends, that the interests of all the creditors and claimants in this estate are and have been fully represented and protected by the assignee for the benefit of...
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