Commercial Bank of Jamesport v. Songer

• Decision Date: 02 July 1934
• Citation: 74 S.W.2d 100,229 Mo.App. 168
• Parties: IN THE MATTER OF COMMERCIAL BANK OF JAMESPORT, IN LIQUIDATION, S. L. CANTLEY, COMMISSIONER OF FINANCE, A. J. PLACE, SPECIAL DEPUTY COMMISSIONER OF FINANCE IN CHARGE, RESPONDENT, v. H. L. SONGER, CLAIMANT, APPELLANT
• Court: Kansas Court of Appeals

74 S.W.2d 100

229 Mo.App. 168

IN THE MATTER OF COMMERCIAL BANK OF JAMESPORT, IN LIQUIDATION, S. L. CANTLEY, COMMISSIONER OF FINANCE, A. J. PLACE, SPECIAL DEPUTY COMMISSIONER OF FINANCE IN CHARGE, RESPONDENT, v. H. L. SONGER, CLAIMANT, APPELLANT

Court of Appeals of Missouri, Kansas City

July 2, 1934

Appeal from Circuit Court of Daviess County.--Hon. Ira D. Beals Judge.

Judgment affirmed.

Dudley & Brandom for respondent.

H. L Songer, Pro se.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

Final judgment adverse to him having been rendered by the Circuit Court of Daviess County on a demurrer to his motion in this case, complainant appealed. The appeal was granted to the Supreme Court; and that court, upon investigation, ruled it had no appellate jurisdiction of the cause and, in a written opinion filed, ordered that the same be transferred to this court as the court having jurisdiction.

It appears from the record that, on May 20, 1927, the complainant filed a second amended motion in the proceedings pending in the Circuit Court of Daviess County, wherein the liquidation of the Commercial Bank of Jamesport, an insolvent bank located in Daviess County, was being carried forward under the supervision of said court by S. L. Cantley, Commissioner of Finance of the State of Missouri, and his special deputy commissioner, A. J. Place, who were in charge of said bank and its assets and affairs.

Among other things, the motion alleged that the said Commercial Bank had, on April 15, 1925, been taken in charge by the said finance commissioner for the purpose of liquidating its affairs and that such commissioner and his deputy commissioner had been, since such time, exercising control over the affairs of said bank in an effort to liquidate the same; and, in general terms, the motion charged misconduct in office, neglect of duty, and other matters equivalent and to the same effect (unnecessary here to set out in detail) by them connected with their management. It further set out in detail certain specified instances and transactions complained of in the liquidation of said bank by the commissioner and his deputy, which, it charged in a general way, were unauthorized and unfair and which were probably intended to come within the general charges in said motion of neglect of duty and misconduct in office. Summing up said motion, it may be said, as was said by Commissioner STURGIS in his opinion for the Supreme Court transferring this appeal to this court:

". . . the basis of complainant's motion is the failure of the State Finance Commissioner and his deputy in charge to properly administer the assets of the failed bank and to apply the same to the payment of its obligations, and more especially in failing and refusing to take possession of and administer certain property and claims justly belonging to the assets of the bank. The matters charged in the motion seem to be summed up by complainant in the charge that the Finance Commissioner and his deputy in charge 'have worked for the interest of the directors of the failed bank in assisting them in securing property which rightfully belonged to the assets of the bank; and instead of taking possession of the assets of the bank and using the same to pay its creditors (including complainant), the Finance Commissioner and his deputy have allowed the directors to take and use the assets of the bank for their own use or in discharge of their own obligations.'

"That complainant's cause of action is based on the dereliction of his official duty on the part of the Commissioner of Finance in administering the assets of the defunct bank and in not executing the trust imposed on him by law is shown by complainant's prayer for relief, which is as follows:

"'Wherefore, this complainant prays the court to examine the acts and conduct of the Department of Finance, the Special Deputy Commissioner of Finance, agents and attorneys and if upon a hearing it is disclosed that the above have not faithfully exercised the trust imposed upon them or have been guilty of any violation of the law or that their acts have deprived this complainant or any other creditor of the Commercial Bank of any rights or property; that if the court finds that the Special Deputy Commissioner of Finance or any agent, employee or attorney has made agreement or agreements with these directors relative to the disposition or disposal of any property of said bank, which agreement or agreements have not been approved by this court, that the court appoint some suitable person to liquidate the affairs of the Commercial Bank in a just and equitable manner and according to law; that the court issue such other and further orders as the evidence may require and in the opinion of this court would be just and proper; that the court make an order reimbursing this complainant for his services and his cost in this action.'"

The motion invited the court to enter upon an investigation for the discovery of some wrongdoing upon the part of the finance commissioner and his deputy which might justify the appointment of some one by the court to administer the liquidation of the insolvent bank in their stead. At least, as shown by its prayer, it sought no relief other than the appointment of some one by the court to administer the liquidation of the insolvent bank instead of the commissioner and his deputy, which necessarily involved their removal.

It was alleged in the motion that complainant was a creditor of the insolvent bank. The motion further alleged that the act of the Legislature in creating the Department of Finance and defining the mode and manner of liquidating insolvent banks was unconstitutional and was in violation of the constitutions of Missouri and of the United States and does not constitute due process of law and that, by certain acts of the finance commissioner and his deputy complained of, complainant had been deprived of his constitutional rights, contrary to the Fourteenth Amendment to the Constitution of the United States and contrary to the Constitution of the State of Missouri.

On December 29, 1929, the commissioner and his deputy filed their joint demurrer to the motion, specifying several grounds, among them that the circuit court had no power or jurisdiction to appoint a special deputy commissioner of finance or to appoint some one with power to liquidate the business and affairs of the Commercial Bank of Jamesport and that the motion does not state facts sufficient to warrant the court in granting the relief prayed for.

Thereafter, on February 3, 1930, complainant filed an application for a change of venue from the judge of the court, which was denied.

Thereafter, on the same date, the demurrer was sustained by the court; and complainant refused to plead further. Thereupon, the court ordered that said motion be struck from the files. From such action and judgment, this appeal is prosecuted.

OPINION.

This appeal was originally sent to the Supreme Court by reason of the constitutional questions supposed to be raised by the motion. However, it was held by that court that no such questions were properly raised by such motion and that such motion was not therefore sufficient to confer jurisdiction of the appeal upon it by reason of raising a constitutional question. It further held that jurisdiction of said appeal was not conferred upon it by any "amount in controversy" shown or by the subject-matter of the relief...