Anderson v. Aetna Cas. & Sur. Co.

Decision Date03 October 1934
Docket Number13917,13983.
Citation178 S.E. 819,175 S.C. 254
PartiesANDERSON v. ÆTNA CASUALTY & SURETY CO. et al.
CourtSouth Carolina Supreme Court

On Rehearing, January 22, 1935.

On Rehearing.

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by B. C. Anderson, on behalf of himself and all other creditors of the Bank of Chesnee, against Ætna Casualty & Surety Company and another. From judgment rendered, all parties appeal.

Affirmed.

Jesse W. Boyd and Carlisle, Brown & Carlisle, all of Spartanburg for appellants.

Johnson & Johnson and Jennings L. Thompson, all of Spartanburg, for respondents.

BONHAM Justice.

It is to be regretted that some of the gentlemen of the bar, in preparing appeals to this court, are unmindful of the provisions of rule 4 of this court. That rule provides that " When it is necessary to print the testimony, or any part thereof, the same shall be printed in question and answer form etc. * * * Only the necessary and pertinent testimony to which one or more exceptions relate shall be printed," etc. (Italics added.)

Some attorneys seem to think the rule gives them authority to print all of the testimony whether or not it is pertinent to the issues submitted to this court for determination. This entails on the court an unnecessary burden of reading the irrelevant testimony and weeding therefrom that which is of value in the decision of the issues.

The transcript of record in this case is a formidable document of 384 pages. It contains pages of testimony which are but repetitions of questions many times asked and answered, and pages of documents and figures through which the court must go to find the relevant testimony.

We bring this matter in all kindness of spirit to the attention of the members of the bar, since by a proper preparation of their transcripts of record they may save the court much unnecessary labor.

From the statement in the record we condense this statement of the litigation:

Plaintiff brings the action to recover the sum of $24,091.89, and interest, the cause of the action being alleged breaches of the conditions of a bond in the penal sum of $30,000, given by W. O. Hines as receiver of the closed Bank of Chesnee, with Ætna Casualty & Surety Company as surety. The sum thus sought to be recovered was deposited by the receiver in the Chesnee Branch of the People's State Bank of South Carolina, of which the receiver was made cashier when it was established at Chesnee, and it was in that bank when it closed, although the receiver had ceased to be cashier of that bank.

The case was tried by Judge Sease and a jury. Before the jury was drawn, counsel for defendant Ætna Casualty & Surety Company suggested to the court that this was a suit in equity. The court, at that time, made no ruling thereabout.

At the close of plaintiffs' testimony, defendant Hines moved for nonsuit; which motion was denied. Ætna Casualty & Surety Company renewed its suggestion that the action was equitable in its nature, and asked that it be tried by the court. No ruling was then made on this motion.

At the conclusion of all of the testimony plaintiff moved for directed verdict in its favor, which motion was refused. At the same time the defendants moved that the court separate the equitable issues from the legal issues, and that the court give judgment on the equitable issues in favor of defendants. This motion was refused.

Plaintiff had alleged in his complaint that the receiver had lent the sum in dispute to People's State Bank; at the close of all the testimony, with the consent of the court, he amended his complaint by alleging that the receiver had deposited this sum in People's State Bank under the related circumstances.

The court of its own motion submitted certain issues of fact to the jury, to wit:

Question 1. "Should W. O. Hines be charged with any part of the deposit in the Peoples State Bank?"

Question 2. "If you find he should be charged with it, what part should he be charged with?"

To the first question the jury answered: "Yes."

To the second question the jury answered: "$18,091.80. Eighteen Thousand, Ninety-One and 89/100, dollars at 7% from October 31, 1931 to date."

Defendants renewed the motions made at the conclusion of the testimony, and for new trial and to set aside the verdict on the grounds set out in the record.

Judge Sease thereafter filed a decree confirming the findings of the jury, and directed that judgment for plaintiff be entered against both defendants.

The complaint, in addition to the recital of its contents hereinabove set out, and the formal allegations of the venue, corporate capacity, and citizenship, alleged the appointment by the court of W. O. Hines as receiver of the Bank of Chesnee, his acceptance, and the execution of his receivership bond in the sum of $30,000 with Ætna Casualty & Surety Company of Hartford, Conn., as surety. The date of the order of appointment was March 10, 1930, and the date of execution of the bond was March 19, 1930. It was further alleged that during the year 1931 W. O. Hines, as receiver of the Bank of Chesnee, came into possession of more than $25,000 which was available for distribution to the creditors of said bank; but that in spite of insistent and repeated requests made by plaintiff and other creditors of the bank that the receiver disburse these funds by way of dividends to the creditors entitled thereto, the receiver retained said funds for months, though they were sufficient to pay a substantial dividend to all creditors; that without obtaining the consent or approval of the court having jurisdiction of the funds, and of his actions as receiver, he made a loan of $24,091.89 of said funds to the now defunct People's State Bank of South Carolina, without security, at the low rate of interest of 2 per cent. per annum; and that the loan was made by the receiver negligently, and without the exercise of due care in examining into and ascertaining the stability and soundness of said People's State Bank, with the financial instability, insolvency, failure, and collapse of the institution imminent and obvious upon due investigation; that on or about January 4, 1932, the doors of the People's State Bank were ordered closed because of hopeless insolvency, and the entire sum of $24,091.89 lent to it by Hines, together with interest, has been lost. The alleged breaches of the receivership bond are thus set forth:

(a) That the defendant W. O. Hines has failed to well, truly, and faithfully perform, execute, and discharge all and singular the duties and obligations of the receivership of the Bank of Chesnee imposed on him by law.

(b) In that the defendant W. O. Hines has failed to truly and properly pay over to the parties entitled thereto and to correctly account for any and all moneys and collections and all other assets and properties that came into his hands and under his control by virtue of such receivership. There is the usual allegation of demand and refusal, and prayer for judgment. Attached to the complaint is a copy of the bond.

The answer of Ætna Casualty & Surety Company admits the formal allegations of the complaint; the appointment of Hines as the receiver of Chesnee Bank, and its suretyship on his bond; that People's State Bank was closed on or about January 4, 1932; that demand has been made on and refused by this defendant. It denies each and every other allegation of the complaint.

The answer of W. O. Hines admits the material allegations as they relate to him contained in paragraphs 1, 2, and 3 of the complaint and so much of paragraph 4 as alleges the execution and delivery of his receiver's bond; and he admits so much of paragraphs 5 and 6 as alleges that during the year 1931 he collected from the assets of the Bank of Chesnee and the stockholders' liability more than $25,000 which was deposited in the Chesnee Branch of People's State Bank; and that People's State Bank was closed and ceased to do business on or about January 4, 1932, at which time there was on deposit to the credit of this defendant as receiver of Chesnee State Bank the sum of $24,091.89. For further answer, this defendant alleges that from the time of his appointment as receiver of the Bank of Chesnee, March 19, 1930, he deposited the funds of his trust in the Chesnee Branch of People's State Bank, which was a continued deposit till People's State Bank closed in January, 1932; and from and through which deposit account defendant marshaled the assets of the Bank of Chesnee and paid two dividends under the order of the court, and under order of the court made and filed in the office of the clerk of court a full statement of the deposits, a copy of which was furnished plaintiff through his then attorney, and which contained full information of all creditors of the bank. All of which was known or should have been known to plaintiff and his associates.

In due time the defendants made the following motions:

First. That the court sever the equitable issues from the legal issues, and that the court find the facts and the law relating to equitable issues.

Second. That the court find on the issue of negligence of the receiver in favor of the defendants, there being no evidence in the case sufficient to support a reasonable inference of negligence of the receiver.

Third. That the court in any event find that since no other depositor of the Bank of Chesnee has joined this plaintiff of record in this case, and he being the sole plaintiff of record, the plaintiff is estopped by his conduct and his own negligence from recovering in this action.

Fourth. That the court dismiss the complaint for that the proof discloses no basis for a reasonable inference of negligence on the part of the...

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