Breese v. Bramwell

• Decision Date: 19 February 1924
• Citation: 223 P. 239,110 Or. 105
• Parties: BREESE v. BRAMWELL, STATE SUPERINTENDENT OF BANKS, ET AL.
• Court: Oregon Supreme Court

223 P. 239

110 Or. 105

BREESE v. BRAMWELL, STATE SUPERINTENDENT OF BANKS, ET AL.

Supreme Court of Oregon

February 19, 1924

Department 1.

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Suit by R. W. Breese against Frank C. Bramwell, as Superintendent of Banks of Oregon, and another. From the decree rendered defendant named appeals. Affirmed.

This suit was before this court on an appeal from an order granting to the plaintiff a preliminary injunction. The appeal was dismissed because the order appealed from was not appealable. Breese v. Bramwell, 102 Or. 76, 201 P 729. For additional facts reference is made to the former opinion of this court. After the former appeal was dismissed the defendant Bramwell, who is also appellant here, filed a general demurrer to plaintiff's complaint. The demurrer was overruled, and the defendant refusing to plead further, a decree was rendered in the circuit court as prayed for in the complaint. The following allegations are in the complaint:

"That the Crook County Bank is a banking corporation organized under the laws of the state of Oregon, and is now and has been since the 27th day of December, 1920, insolvent and in charge of Frank C. Bramwell, superintendent of banks aforesaid, for liquidation; that the said superintendent of banks has drawn a check for a large sum of money against funds belonging to the insolvent Crook County Bank in payment of a claim of French & Co., bankers of The Dalles without an order of the circuit court of the state of Oregon for Crook county; that the funds of the defunct Crook County Bank are on deposit with the Bank of Prineville above named, and they will pay said check so wrongfully issued, and thereby the depositors of the Crook County Bank and each and all of them and the creditors thereof will not receive their pro rata amount of the funds of said defunct bank for the payment of said check or any check in favor of French & Co., before a pro rata division of the funds of the bank is made will result in a wrongful preference of one creditor over and above each and all of the other creditors of said insolvent bank; that the plaintiff is a depositor in said Crook County Bank, and is entitled to a share pro rata in all money paid out to creditors, and that the payment to said French & Co. of a check issued by the said Frank C. Bramwell or his deputy George F. Euston will irreparably injure and damage this plaintiff and all other depositors and claims of the said Crook County Bank."

The appellant assigned as error the granting of the preliminary injunction. No error is assigned because of the permanent injunction.

Willard H. Wirtz, of Prineville, for appellant.

Jay H Upton, of Bend, for respondent.

COSHOW, J. (after stating the facts as above).

It is elementary law that the facts stated in the complaint are admitted by a demurrer thereto. It appears from the allegations of the complaint that the defendant Bramwell was wrongfully about to pay one of the creditors of the Crook County Bank, an insolvent corporation, to the irreparable injury of the other creditors. The sole contention of the defendant Bramwell on this appeal is that the court was without authority to issue the preliminary injunction. This contention of the plaintiff is based upon the language in section 6221, Or. L., which reads as follows:

"No attachment, injunction or execution shall be issued against such

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