98 Iowa 261 | Iowa | 1896
I. The following statement of the facts will be sufficient for a correct understanding of the questions to be considered: On the first day of September, 1898, Carter and Moody, a firm composed of Mary F. Carter and Arthur H. Moody, made a general assignment of all the property owned by them, as a co-partnership and as individuals, to Wells M. Irwin, in trust for the benefit of all their creditors. Mr. Irwin accepted the trust, qualified and gave notice to the creditors, as required by statute. Within the time prescribed, a large number of claims were presented, and filed by Mr. Irwin, including the claims of these petitioners. The claim of the State Bank of Keokuk is upon six promissory notes executed to the bank, and which are identified as Exhibits A to F, inclusive. Exhibit A, dated April 11, 1891, is for five thousand dollars, and signed, “Carter & Moody, Arthur H. Moody, Ed. S. Carter.” Exhibit B, dated April 16, 1891, is for two thousand five hundred dollars, signed, “Carter & Moody, Arthur H. Moody, Ed. S. Carter.” Exhibit C, dated November 1, 1892, is for two thousand five hundred dollars, signed, “Carter & Moody, Ed. S. Carter.” Exhibit D, dated February 25, 1892, is for- two thousand five hundred • dollars, signed, “Carter- &
II. Petitioners move this court to dismiss the appeal, on the grounds that appellant, as assignee, has no interest in the distribution of the assets that entitles him to appeal, and he has no permission from the court, nor request from the creditors, to appeal. This motion was argued at length, and with many citations, in anticipation of its being submitted and decided before the cases were prepared for submission on the merits, but we ordered the motion to be submitted with the cases. It will be observed, that appellees entitled their petitions as in the matter of this assignment, and as against the assignee only; that he alone was served with notice; that he alone appeared and joined issues, and that appellees proceeded to trial against him as the party in interest. They did not ask leave of the court to institute these proceedings against its officer, nor question his right to defend against what they were claiming, but treated him, not only as a proper party, but as the only party entitled to defend. It may well be questioned whether, under these facts, appellees should be heard in this court to question appellant’s right to appeal, but this we do not determine. Appellees’ counsel, in their argument on the merits, after the motion was ordered submitted with the case, say: “We desire to say, frankly, to the