ON REHEARING.
Seevers, J.2. practice : on*1 agreed1 l'acts: pleading. The correctness of the conclusion reached in the foregoing opinion is controverted in a very able argument contained in a petition for a rehearing, upon the ground the matter relied on as an adjudication . was not pleaded. It is true no such deiense is pleaded, but the abstract states it was “ stipulated and agreed ” the cause should be submitted to the “ court upon the assignment, petition, answer, and the following agreed statement of facts.” Among such facts is the order of. the court made at the November term, 1878, making a pro rata dividend *420among the creditors who filed their claims within three months.
When a cause is submitted on the pleadings, and certain facts agreed upon, the court must determine from the whole record which party is entitled to relief, and the extent thereof. As it was agreed a certain fact existed, which we hold to be sufficient as an adjudication, it is immaterial whether such a defense was pleaded or not. The object of agreeing on the facts is to obviate the necessity of filing any pleading, or in the case at bar of any additional pleading, by either party. In effect, these parties said to the court, “ upon the record, is the plaintiff entitled to relief; if so to what extent?” It is further said the order cannot be regai’ded as an adjudication because the plaintiffs were not bound to appear and object thereto. When the assignment is filed the court, under the statute, is vested with power to determine all questions arising thereunder. The powers of the court are of the nature of those exercised by a court whose province it is to adjust and distribute the estate of a bankrupt.
Of necessity, the court must be vested with the power to determine priorities among creditors. If this be not so, no dividend could be directed-until the question as to priority had been determined in some other proceeding. To our mind it is clear the plaiiitiffs should, in the first instance, have made objection as contemplated by the statute in the assignment proceeding. When this is done the court could direct when and in what manner the issue should be made up and tried. The possession or custody of the property assigned, by the court through the assignee, is not unlike the custody of property by a court through its receiver. If there may be proceedings in another court which affect the assignment, or rather the disposition of the property, the court in which the assignment is filed cannot at any time with safety make a dividend or any other order which affects the substantial rights of the parties.
The case of Wurtz, Austin & McVeigh v. Hart, 13 Iowa, *421515, is distinguishable from the case at bar for several reasons, the most important of which are that the action was commenced before any dividend had been ordered, and it was sought to enjoin the assignee from making any payments under the assignment on the ground there was certain property which had been turned over to one creditor in payment or security for his claim, and for which no credit had been given. Such property not having been included in the assignment could only be reached, and the creditor holding it compelled to account therefor, by an original and independent action.
It is due to the counsel for the appellant that we should say the result reached was not caused by any fault or mistake on their part. The petition for a rehearing is
Overruled.