In Re Will of Carson , 227 Iowa 941 ( 1939 )

I believe the foregoing opinion reaches the correct result herein, but am unable to concur in division I, because I think it conflicts with the position taken by us in the case of In re Estate of Strasser,220 Iowa 194, 198, 262 N.W. 137, 139, 102 A.L.R. 117, wherein we state:

"When a receiver is appointed for a bank or trust company, its affairs, including its relation in the handling of trusts, immediately fall under the direction of the court appointing a receiver. * * * When a state bank or trust corporation is placed in the hands of a receiver, its capacity to continue to do business and the capacity of its officers and agents to conduct its affairs cease under the provisions of Code section 9239, and thereafter the receiver becomes the managing agent of the insolvent corporation under direction of the court."

When the American Trust Company was adjudged insolvent and a receiver was appointed by the district court, this terminated the status of this company to act as trustee, and a vacancy occurred. It seems to me that the capacity of the officers to conduct the affairs of the American Trust Company also ceased, and that they had no authority to report upon or account for this trust. I think that the question should be disposed of upon other grounds.

The Davenport Bank Trust Company was appointed and qualified as successor trustee May 2, 1933. Thereafter, on May 27, 1933, application was filed to require the American Trust Company to report, and an order was entered directing it to report, both as executor and trustee, and to make a full accounting on its part. This order was apparently ignored and, on November 7, 1934, on application a citation was issued. Following the issuance of this citation, on November 30, 1934, the final report, which appellant now seeks to have stricken, was filed.

At the hearing a stipulation was made from which the court was warranted in finding that, prior to the filing of such report, an attorney for appellant went to Davenport, interviewed the former secretary of the American Trust Company, told him of the order entered in May 1933, requiring the company to report, advised that a citation would issue, stated that he thought the former officers of the company should file a report and persuaded the former secretary to believe it was their duty to make the report. Following this conversation, the report was prepared and filed.

This final report became the basis for the pleadings in this case. However, appellant, prior to the filing of the report, on November 21, 1934, filed a resistance to the appointment of the Davenport Bank Trust Company and secured its removal as such trustee. This action on the part of appellant provoked an appeal to this court wherein it was determined that the removal was improper. See In re Estate of Carson, 221 Iowa 367, 265 N.W. 648. On remand of the case in June 1936 the Davenport Bank Trust Company was reinstated as trustee. From the record it appears that it undertook to prepare and did file objections to the final report on April 25, 1938. Thereafter, on May 12, 1938, appellant filed a motion for more specific statement of such objections, and at the same time filed an application to require the receiver of the American Trust Company to report herein. The application to require the receiver to report was sustained, but, on appeal to this court in certiorari, the order was held to be in excess of the jurisdiction of the trial court. See Bates v. Evans,226 Iowa 438, 284 N.W. 385.

On June 18, 1938, the motion for more specific statement filed by appellant was overruled and the hearing on the final report was set for August 16, 1938. Appellant then filed a petition for rehearing on its motion, and on rehearing the order was modified, July 7, 1938. An amendment to the objections to comply with the supplemental order was promptly filed July 9, 1938. On July 21, 1938, appellant filed its motion to strike the final report of the American Trust Company together with a motion to strike the objections thereto, and another motion for more specific statement in reference to such objections. Hearing was set for September 6, 1938. On August 10, 1938, appellant appealed from the order of June 18, 1938, and on August 31, 1938, secured an order from the chief justice of this court appointing Judge Hasner to conduct the hearing of September 6, 1938. Judge Hasner conducted such hearing and overruled all of appellant's motions, from which ruling appeal was perfected October 31, 1938. On December 5, 1938, appellant secured from the chief justice of this court an order extending the time to file abstract until March 12, 1939, which had the effect of postponing hearing in this court until the September 1939 term.

Counsel for appellant has been industrious indeed in the course of this litigation. It appears to me that the industry of counsel may be ascribed perhaps to other motives than those of securing a speedy and orderly hearing of this cause, and that the motion to strike the final report of the American Trust Company constituted such departure from the course of procedure to which appellant had committed itself that the trial court was justified in overruling it irrespective of the grounds stated in support thereof.

While, nominally, the American Trust Company appears to be the party in interest on the issues presented by its final report and the objections thereto, in view of its insolvency and the fact that the appellant is the surety on its qualifying bond, as trustee and as executor, obviously appellant is the real party in interest from a financial standpoint. Appellant has a distinct advantage in many respects in having the proceedings to establish liability on its bond conducted before the probate court. With the venue established in the probate court, many matters are of record which would require proof in an independent action on the bond. Appellant can claim advantage from this situation as well as the appellees. This is demonstrated by the fact that, on this appeal from interlocutory orders on motions for more specific statement and to strike, we are confronted with an abstract of 545 pages. The trial court was warranted in determining that, when appellant induced the former secretary of the American Trust Company to file the final report on behalf of the American Trust Company, appellant was desirous of having the proceedings to determine the liability on its bond conducted in the probate court. It filed no objection to such report nor did it attack it by a motion to strike until the report had been on file from November 30, 1934, until July 21, 1938. In the meantime, objections had been filed by the Davenport Bank Trust Company, after it had come to this court to adjudicate the fact that it was properly appointed trustee. When its objections were filed, appellant, rather than attacking the report, attacked the objections and also sought to have another report filed by the receiver. After appellant was unsuccessful in its effort to make the objections more specific, it sought to remove the basis for the pleadings by filing a motion to strike the final report as well as a motion to strike the objections to the final report.

In the case of Bookin v. Iowa Southern Utility Co., 221 Iowa 1336,268 N.W. 50, this court held that a motion to strike and a motion for more specific statement are motions of the same kind, and that one may not follow the other. Under our decision in that case, appellant clearly had no right to file a motion to strike appellees' objections to the final report after appellant had attacked the objections by a motion for more specific statement.

The motion to strike the final report, however, can hardly be classed as the same kind of a motion as the motion for more specific statement of the objections to the report. However, it seems to me that the same considerations, which prompted our decision in the Bookin case, should prompt us to now hold that appellant, having induced the filing of the final report, and having accepted it as a basis for the pleadings on the issues to determine its liability under its bond, should not now be permitted to strike the final report. At the conclusion of our opinion in the Bookin case, at page 1341, we state:

"We know it is a somewhat debatable matter, but to permit the practice attempted to be indulged in here would be to lend our countenance to numberless delays in getting cases tried. Actions are commenced in court to obtain legal rights, to have justice done. Justice delayed is justice denied. Courts have been charged too much with delaying justice, and we cannot believe that the legislature in enacting this change in the statutes intended or contemplated that it would be used as used here. If the party filing the motion is convinced that it is right, and is willing to rest his case upon the ruling upon it, he has a method of doing it. He can stand upon it, permit judgment to go against him, then appeal to this court, and if error has been committed, the case will be reversed. He is fully protected in this way, and the trial of cases is expedited. With a half dozen appeals in one case, it becomes impossible to expedite justice. So taking into account the necessity that speedy disposition of cases be made in court, that a lawsuit may sometime come to an end, we think that the defendant in this case is unjustly attempting to put off the day when the matter can be finally adjusted, and that this should not be permitted. We might lay down a rule here which would cause people to cease to remember and talk about the mythical Jarndyce case, the Jones County Calf case, in the courts for twenty-five years, and of other instances of litigation in which it has lasted for years and years, before final termination. To put off final decision by tactics of evasion is unjust. Therefore, in accordance with the views herein expressed, the opinion in the lower court is hereby affirmed."

It seems to me that the language above set forth might well be applied to the situation now before us. To permit appellant to attack the final report of the American Trust Company, the filing of which it induced, by a motion to strike, filed nearly four years after the final report was filed, in view of the other litigation conducted and provoked by appellant herein would seem to be lending our countenance to unnecessary delays in getting this case tried. This action was commenced to obtain legal rights, to have justice done. "Justice delayed is justice denied. Courts have been charged too much with delaying justice." With numerous appeals to this court it becomes impossible to expedite justice. Taking into account the necessity that speedy disposition of cases should be made in court, that a lawsuit should sometime come to an end, that appellant appears to be unjustly postponing the day when this matter may be finally adjudged, that, irrespective of the legal right of the former officers of the American Trust Company to file the final report, the course of conduct pursued by counsel seems to be sufficient to warrant us in accepting the final report and the objections thereto as a proper basis for the pleadings from which the ultimate liability, if any, of appellant is to be determined in the probate court. I am disposed to hold that the trial court's order of September 6, 1938, overruling the various motions filed by appellant on July 21, 1938, was properly entered and that we should not decide the merits of appellant's motion to strike the final report of the American Trust Company, had the circumstances attending its filing been different than those presented by the record herein.

I am authorized to state that OLIVER, C.J., and HAMILTON, J., concur in this opinion.