Wurtz, Austin & McVeigh v. Hart

Weight, J. We find no arguments in the cause, and are left to infer the positions assumed by respondents, from the causes set forth in the motion and demurrer. It is there assigned that the petition shows another action pending in the United States District Court, and that petitioners are not entitled to this action at the same time. The pendency of such other action, however, is by no means a necessary bar to this. It is not suggested that an injunction was granted in that case to restrain the assignee from paying money received by him, from time to time, to the creditors, nor that the respondents (creditors) are parties to that bill. Not only so, but if an injunction had been asked and granted in that case, the assignee should be restrained, if, in defiance of that order, he treats the assignment as valid, and is about to pay a dividend upon the debts. But one further view upon this question will be seen, in the consideration of the other point relied upon by respondents, to wit: That complainants have a complete statutory remedy for the matters complained of by way of exceptions, as provided under ch. 77 of Revision. This is a contest between the creditors. If Kendrick & Co. and those united with them were paid by Cower & Son any portion of their demands, and have failed to make the proper credits, insisting - upon the full amount of their claims, then, we are of the opinion, that under § 1832, of said ch. 77, complainants could except to the same, as shown by the assignee’s report, and have their correctness [519] adjudicated. If, on tbe other band, they bave securities wbicb they bave failed to exhaust, then there is no plain, speedy and adequate remedy given to complainants by the statute, to compel them to resort to such securities before taking dividends under the assignment. A creditor under a general assignment, who has a special security, may be required by the other creditors to resort to this, and can only claim a dividend upon the amount remaining unpaid, after exhausting the property upon which he has such special lien. Or this same rule may be stated thus, that if a creditor has two funds out of which he may make his debt, he may be required to resort to that fund upon which another creditor has no lien. (Dickson et al. v. Chorn et al., 6 Iowa 19.) And this is one and the main object of the present bill. The statute, in giving a party the right to except to any claim or demand of a creditor exhibited, and authorizing the District Court to hear the allegations of the parties in the premises, and to render judgment thereon, has reference more particularly to contests over the correctness or genuineness of such claims. Here, however, according to one part of this bill, or one view of it, complainants do not deny that respondents are entitled to the full amount of their claims, but say that they should be first paid out of their special fund or security. If they excepted to the report they could accomplish nothing, for they could not disprove the right of respondents to recover. Their right to recover would be undisputed. And it was never intended by the statute that all the various rights and equities of creditors should be settled exclusively and only in the manner there pointed out. In our opinion, the decree below should be Reversed.