Duzan v. Cantley

• Decision Date: 19 December 1932
• Parties: J. M. DUZAN, APPELLANT, v. S. L. CANTLEY, COMMISSIONER OF FINANCE, ETC., RESPONDENTS
• Court: Kansas Court of Appeals

55 S.W.2d 711

227 Mo.App. 670

J. M. DUZAN, APPELLANT, v. S. L. CANTLEY, COMMISSIONER OF FINANCE, ETC., RESPONDENTS

Court of Appeals of Missouri, Kansas City

December 19, 1932

Appeal from Circuit Court of Bates County.--Hon. W. L. P. Burney Judge.

AFFIRMED.

Judgment affirmed.

Howell H. Heck for appellant.

J. R Hales, Lyman J. Bishop and D. C. Chastain for respondent.

OPINION

TRIMBLE, J.

In this action, plaintiff, (a holder of a certificate of time deposit of $ 602.53 in the Peoples Bank of Rich Hill, Missouri, at the time it closed its doors on April 27, 1930, and defendant Cantley, State Commissioner of Finance, was placed in charge thereof), sues to have said deposit declared a preferred claim against the assets of said defendant bank. Special Deputy Commissioner of Finance, Keinberger, was placed in charge, but he was afterwards removed and others put in his place, and then the said special deputy was reinstated and again placed in charge of said bank's affairs.

When the bank closed, and at the time of the trial herein, the bank had enough money on hand to pay all preferred claims, together with the expenses of liquidation, and also to settle plaintiff's as a preferred claim.

Plaintiff was the beneficiary in a policy of war risk insurance on the life of his son, a member of the American Expeditionary Forces in the Great War; and, upon the son's death, payments of $ 57.53 per month were paid to plaintiff by Government on account of said policy. Plaintiff placed $ 575 of savings arising from these monthly payments in said bank on time deposit, and when that matured, the accumulated interest was added and the whole amount, aggregating $ 602.53 was again put in a time deposit, the certificate therefor being for said sum, viz., $ 602.53, and was derived wholly from the saving of the funds paid to the plaintiff by the U.S. Government as aforesaid. Plaintiff informed the cashier of said bank, at the time of making the time deposit therein, of the source of said funds and the nature of said account. When the bank failed the whole of said sum represented by the said certificate of time deposit went into the hands of said Commissioner of Finance, and he now has the said fund in his possession.

After proper notice for the presentation and allowance of claims, the one involved herein was duly, and in proper time, presented to, and was allowed by, said Commissioner of Finance as a common claim, and more than sixty days had elapsed since the expiration of the time for filing claims with the commissioner before this suit was filed, and by him said claim was approved merely as a common claim.

After its allowance as such against the assets of the bank, plaintiff, on July 13, 1931, brought suit to have it allowed as a preferred claim.

The case was submitted upon an agreed statement of facts, which contain the facts hereinbefore set out and also the following further facts:

1. That said time deposit was not due at the time the bank closed, and, when presented for allowance, claimant did not ask to have it allowed as a preferred claim.

2. That this claim for preference was filed in the circuit court more than sixty days after, and within six months from, January 29, 1931, the final date set for the presentation and allowance of claims.

3. That claimant never filed, either with the commissioner or with the court, objections to the order classifying claims, but no special order has been made heretofore denying the claims as preference.

4. That the deposit arose from the source as hereinbefore stated.

5. That claimant is not indebted to said bank nor is said bank entitled to any credit or setoff against this claim, except that on May 15, 1931, the court made an order directing the special deputy in charge to pay all general claimants a divided of ten per cent, which was done, and pursuant thereto, claimant received said ten per cent amounting to $ 60.25.

The court refused to order it paid as a preferred claim.

We find no necessity of going into the effect of the failure to ask a preference at the presentation of the claim to the commissioner, nor of the effect of the receipt of the ten per cent dividend paid while it was still an allowance as a common claim. This, for the reason that the question of whether it is properly allowable, in any event, as a preferred claim, can be determined irrespective of these facts.

It is well-settled that, in order for a claim to be given a preferred standing, some relation of trust must exist. If the relation between the bank and claimant be that of...