209 N.W. 421 | Iowa | 1926
The appellant was the superintendent of banking of the state of Iowa, and as such became the receiver of the State Savings Bank of Logan, insolvent. The appellee Harrison 1. BANKS AND County had a deposit in the insolvent bank to a BANKING: large amount. It made application to the insolvency: receiver that its claim be established as a liquidation: preferred claim, under the provisions of Section exclusive 3825-a, Code Supplement, 1913. Five other procedure. municipal corporations, which also had deposits in the insolvent bank, made like *98 applications, respectively, each claiming a right of preference under the provisions of the above noted statute. The receiver denied the claims for preference, but classified each claim as a general deposit. He made report accordingly to the district court, and asked that his report be reviewed and approved. The claimants appeared in the district court and resisted the approval of the report, and there pressed their claims for preference. The district court allowed the preference to each claimant. It was from such order that the receiver appealed.
The insolvent bank went into the hands of the receiver in May, 1923. The receivership proceeding and the method of disbursement thereunder are governed by the statute then in force. This was Chapter 189 of the Laws of the Fortieth General Assembly, amending Section 1877 of the Code. This statute was construed by us in Leach v. Exchange State Bank,
The principal contention for the appellees is that the appellant has no right to raise any question here on appeal which he did not raise at the trial in the district 2. APPEAL AND court. The contention is that the receiver did ERROR: not make the point in the district court that reservation the question at issue was controlled by the of grounds: later statute. It is urged, therefore, that he permissible waived the point. It is urged also that a change of certain stipulation by the parties in the position. district court amounted to such a waiver. Such stipulation contained the following:
"It is further agreed that the matter of the allowance of said claims and the issue to be determined by the court is whether or not said claims should be given preference over the *99 claims of depositors and other creditors under and by virtue of Section 3825-a of the 1913 Supplement to the Code, and that such issue is properly raised by the pleading in each case."
Reliance is also had upon the following prayer of the receiver, as a part of his report:
"That a day of hearing be fixed upon each of the foregoing claims, and the claims be consolidated and submitted together upon the question of preference under Section 3825-a of the Code, and that an order be made denying said preference."
The burden was upon the claimant to establish his right to a preference. The receiver properly stood upon the defensive. He was under no burden of specification. The receiver did resist the claim at all stages of its presentation. He was under no legal requirement to advance argument. If he advanced unsound argument in his resistance, he was not thereby barred from bringing forward sound argument. Nor was the court precluded from sustaining his resistance upon a correct view of the law, even though he himself had advanced mistaken views of the law. The issue presented was essentially one of general denial. Until final judgment, the duty of correct decision under the existing law rested upon the court at all times. The stipulation and the prayer of the receiver's report, which we have quoted herein, disclose clearly that the right of preference was resisted. The order entered by the district court was properly excepted to.
It is urged, however, that the receiver did not claim that Section 3825-a was not applicable to the proceeding, but that theapplicability of this section was impliedly admitted.
To say that such statute was, or was not, applicable to the proceeding would, in any event, be mere legal argument. As already stated, the receiver was under no necessary burden to advance any legal argument at all. Defeated litigants not infrequently present better arguments in this court than they presented in the court below. If we were precluded from the consideration of better arguments here than were made below, our function of usefulness would be very greatly reduced. We may add that it was not within the function or power of the receiver to stipulate the law adversely to his trust.
We find nothing in the record that amounts to a waiver of any right under the general issue before the trial court. If the *100 opinion in the case of Leach v. Exchange State Bank had been handed down before the trial of this case below, it would undoubtedly have been followed by the district court. The appeal by the receiver has saved to him the right to have the issue still ruled by our holding in the cited case.
The order appealed from must, accordingly, be reversed. —Reversed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.
