Bank of Indianola Liquidating Corporation v. Moore
| Decision Date | 11 January 1937 |
| Docket Number | 32466 |
| Citation | 177 Miss. 572,171 So. 693 |
| Court | Mississippi Supreme Court |
| Parties | BANK OF INDIANOLA LIQUIDATING CORPORATION v. MOORE |
1. APPEAL AND ERROR.
Decree approving items paid by bank liquidator as preferred claims would be reversed where statement of facts stipulated that no proceedings had been had to determine whether claims were preferred, notwithstanding recital in decree that court took judicial notice of all things that had transpired "in this case" after appointment of liquidator and subsequent to qualification of successor since appellee was bound by statement of facts in regard to case at bar, which was beginning of litigation between parties, and since court could not look to other litigation in which kindred question was involved to determine if claims were preferred.
2 EVIDENCE.
In suit to determine whether claims against insolvent bank were properly paid as preferred claims, court could not look to other litigation in which parties had no interest, as claims for preference were independent and each claim was required to stand or fall on evidence relevant to it.
HON. J L. WILLIAMS, Chancellor.
APPEAL from the chancery court of Sunflower county Hon. J. L WILLAMS, Chancellor.
Suit by the Bank of Indianola Liquidating Corporation against C. C. Moore, liquidating agent of the Bank of Indianola. From a decree approving the liquidator's final account, disallowing exceptions thereto and discharging the liquidator, plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Moody & Johnson and Jefferson Davis, all of Indianola, for appellant.
The draft given by the Bank of Indianola to the Merchants Bank and Truss Company was for items the Bank of Indianola had cleared or collected for the Merchants Bank and Trust Company. The draft was not paid because of the insolvency of the Bank of Indianola. This court has held time and time again that such a claim is not a preferred claim and that the payee named in the draft is merely a common creditor of the bank.
Billingsdey v. Pollock, 69 Miss. 759, 130 So. 821, 30 A. S. It. 585; Alexander County National Bank v. Conner, 70 So. 827, 110 Miss. 653; Love v. Federal Land Bank, 127 So. 723, 157 Miss. 52; Love v. Fulton Iron Works, 162 Miss. 890, 140 So. 529.
The claim of the Merchants Bank and Trust Company against the Bank of indianola was not a preference claim. Appellee may contend, as he did in the lower court, that both banks were being liquidated in the chancery court of Sunflower county, Mississippi, and for this reason he considered the claim as a preferred claim. We say that such is unsound and that such a relationship does not make the claim a preference claim. It would be just as reasonable to say that the claim held by an administrator of a decedent's estate for his deposits in an insolvent bank was a preferred claim against such insolvent bank because both estates were being administered in the same court.
The claim of the Merchants Bank and Trust Company, in liquidation, not being a preference claim, the liquidator of the Bank of Indianola, in liquidation, had no right to pay the same.
Christensen v. Merchants and Marine Bank of Pascagoula, 150 So. 373, 168 Miss. 43; 3 R. C. L. 642, sec. 272; 7 C. J., page 751, sec. 547, and page 747, sec. 541.
The agreed statement of facts is in lieu of evidence offered on the trial below. In other words the facts disclosed by the evidence is incorporated in the statement of facts.
The recital in the decree is to the effect that the lower court took "judicial knowledge of all things that have transpired in this cause since the appointment of C. C. Moore and subsequent to the qualifications of his successor." This recital, of course, is limited to the proceedings had in the case at bar and cannot be extended to anything that transpired aliunde the proceedings. When so considered the recital is merely one of law, not fact, for a court always takes judicial knowledge of the proceedings had in the case before it.
The issue presented to the trial court was whether the claim, on which the payments were made, was a preference claim. This is an issue of fact and law, as to which evidence must be introduced to prove the essential facts of that issue. As to whether the claim is a preference claim depends upon its nature and the facts with reference to the same could not properly be matters of judicial knowledge.
If the facts, of which the lower court is supposed to have taken judicial knowledge, were pointed out to this court it might be possible, to determine the source from which the lower court acquired its judicial knowledge. The trouble is, we do not know, nor does this court know, what facts the lower court is supposed to have taken judicial knowledge. Hence it is impossible for us, as it is for this court, to refer to the source of such supposed facts.
The burden of proof, as to the issue presented in the lower court, is no doubt on the appellant. But that burden was met by evidence introduced on the trial below as is disclosed by the agreed statement of facts, which is in lieu of that evidence.
Neill & Townsend, of Indianola, for appellee.
We respectfully submit that the law relied upon by appellant for the reversal of this cause is not applicable to the facts in this case. The court below finally heard and determined the matter, and found that during all of the time appellee was engaged in the liquidation of the Bank of Indianola handling thousands of dollars of money and being charged with the receipt and disbursement of same, all was handled in good faith and according to law.
Frankly, we think the rule to be, in matters such as that of accounting by an executor or an administrator, in rendering an account the burden of proof is on the one claiming credit for the disbursement, that is to say, in the court below.
We submit, however, that in matters such as accounting by an executor or an administrator or a receivership where exceptions are taken the rule is different and the burden of proof is on the contestant. Likewise, where one desires to surcharge or falsify the account of an executor, administrator or a receiver the burden of proof is on the contestant. This matter was heard in the court below on the petition of appellant wherein appellant correctly assumed the burden of trying to show the trial court that appellee had not faithfully accounted for certain specific items, and sought to have appellee surcharged with same, and appellee appeared in answer to same.
Where exceptions to an account are of an affirmative nature, the burden of sustaining such exceptions rests upon the contestant.
The order or decree of which a review is sought is as a general rule presumed to be right, in the absence of any affirmative showing in the record to the contrary, and every reasonable presumption will be indulged in favor of the correctness of the proceedings below. Accordingly the burden rests on appellant to show that the ruling complained of was incorrect.
24 C. J. 1050; Gray v. Harris, 43 Miss. 421; Scott v. Porter, 44 Miss. 364; Harper v. Archer, 9 S. & M. 71.
The appellant elected, after the rendition of the decree about which he now complains, to enter into an agreed statement of facts to be submitted to this court, wherein he agreed, in effect, to eliminate therefrom things which the trial court properly had before it, and of which it could and did take judicial knowledge. This court can certainly take judicial knowledge of that which the trim court had before it, in this same cause, and did take judicial knowledge of, and too since appellant has elected to enter into an...
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