Williams v. Des Moines Loan & Trust Co.

• Decision Date: 15 November 1904
• Citation: 101 N.W. 277,126 Iowa 22
• Court: Iowa Supreme Court
• Parties: WILLIAMS v. DES MOINES LOAN & TRUST CO. RUSHMAN ET AL. v. MARQUIS.

126 Iowa 22

101 N.W. 277

WILLIAMS

v.DES MOINES LOAN & TRUST CO.

RUSHMAN ET AL.

v.MARQUIS.

Supreme Court of Iowa.

Nov. 15, 1904.

Appeal from District Court, Polk County; James A. Howe, Judge.

Appellant, Marquis, was appointed receiver of the Des Moines Loan & Trust Company, and in November of the year 1901 filed his final report and was by the court discharged. This was an application to set aside the order of discharge, which was sustained by the trial court, and the receiver, Marquis, appeals. Affirmed.W. C. Marquis, for appellant.

E. S. Wishard and J. K. Macomber, for appellees.

DEEMER, C. J.

The application to set aside the final order of discharge bottomed upon (1) fraud in obtaining the same; (2) irregularity in procuring it; (2) failure to give notice of the application for the order, or of the filing of the final report; (4) failure to assign the cause for the hearing, and to give notice by publication as required. It is claimed that the receiver failed to account for a large amount of property in his hands. Marquis was appointed in March, 1896. In June of the year 1897 the assets of the Des Moines Loan & Trust Company were ordered sold, and under submission of the court the receiver was permitted to bid upon the property; and, his bid being the highest, it was accepted, and a sale to him was ordered, and approved by the court. The assets were sold by schedule, and it is claimed that certain thereof were not included in the sale to the said receiver. Having made no report appellees herein, in the year 1901, filed a motion to require the receiver to file a final report. This motion was sustained, and on October 19, 1901, he filed his final report. November 9, 1901, the court made an order for the hearing of the report, and directed that notice thereof be given by publication. This order was signed by the judge, and it fixed the time for hearing as November 23, 1901, and directed that notice thereof be given in a newspaper by three publications. It was not entered of record, however, until January 10, 1902. A notce directed to no one, and signed by no one, was published in the newspaper, as directed, on the 12th, 13th, and 14th days of November, and proof of publication was filed November 23, 1901. At the time fixed the court proceeded to hear the final report and application for discharge, and, no one appearing to object thereto, the report was approved, and the receiver discharged. Appelleeshad no actual notice of the filing of the final report and application for discharge, or of the time fixed for the hearing thereon, and were never informed of the order made by the trial court. A rule of the district court of Polk county requires that all orders made while court is in session be entered upon a calendar or motion docket prepared for the use of the court and bar. It also appears that it was the universal custom in that county to enter upon what is known as the motion calendar all final reports of receivers, all applications for orders and motions for discharge. In the instant case no notation of any kind was made upon the motion book of the filing of the final report and application for discharge or order for the hearing of said report and for publication of notice, or of the affidavit of publication; nor was the order for publication entered upon the court journal until after the receiver had been discharged. Having no notice of these matters, appellees, in January of the year 1902, filed another motion for an order requiring the receiver to report, and were then informed that he had made a final report, and had been discharged. Thereupon, and within five days, appellees filed a motion to set aside the order of discharge, and this was followed by a petition for the same purpose filed February 21, 1902. After hearing the evidence, the trial court overruled appellees' motion, but sustained their petition, and the order approving the receiver's final report and discharging him was set aside, and the appellees were given 30 days within which to file objections to the final report. The appeal is from this order.

The receiver...