Engelcke v. Farmers' State Bank of Canistota, s. 7332-7335.

• Decision Date: 30 December 1932
• Docket Number: Nos. 7332-7335.,s. 7332-7335.
• Citation: 246 N.W. 288,61 S.D. 92
• Parties: ENGELCKE v. FARMERS' STATE BANK OF CANISTOTA et al., and three other cases.
• Court: South Dakota Supreme Court

61 S.D. 92

246 N.W. 288

ENGELCKE

v.

FARMERS' STATE BANK OF CANISTOTA et al., and three other cases.

Nos. 7332-7335.

Supreme Court of South Dakota.

December 30, 1932.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Separate actions by Trintje Engelcke and by A. G. Engelcke against the Farmers' State Bank of Canistota and others, and separate actions by A. G. Engelcke and by A. G. Engelcke and another against the Farmers' State Bank of Canistota and others. From judgments for plaintiffs, and from orders denying motions for new trial, defendants appeal.

Affirmed.C. H. McCay, of Salem, and T. B. Thorson, of Rapid City, for appellants.

Parliman & Parliman and Danforth & Davenport, all of Sioux Falls, for respondents.

ROBERTS, J.

Plaintiffs instituted these actions to recover upon seven certificates of deposit. The actions were tried together to the court, and the appeal in each of the four actions is from the judgment entered upon findings of fact and conclusions of law in favor of the plaintiffs and from an order of the trial court denying motion for new trial. The appeals are submitted to this court on the same abstract of the record and briefs.

The Farmers' State Bank of Canistota, S. D., became insolvent and was placed in charge of the superintendent of banks for purposes of liquidation on October 18, 1925. A sufficient number of the depositors of the bank, acting under the provisions of chapter 104, Laws of 1925, entered into an agreement to reorganize and reopen the bank. The reorganized bank then acquired the assets and liabilities of the Citizens' State Bank of Canistota, S. D., amended its articles of incorporation by changing its corporate name to the Canistota State Bank, and thereafter continued to function under such name. These actions were started on the 20th of September, 1928, and the Canistota State Bank was not named as a party defendant. The original judgments dated September 3, 1929, were entered against the Farmers' State Bank. The trial court upon application and after hearing thereon made an order in each action granting permission to the plaintiffs to make an amended and substituted complaint to include the Canistota State Bank as a party defendant. Answers were interposed, and thereafter trial upon the issues presented upon the amended complaints and answers thereto was had. The transcript of the evidence in the former trial was received and additional evidence was submitted. The trial court entered new findings of fact and conclusions of law in each of the actions and on the 9th day of October, 1930, made and entered judgments thereon. The appeals are from these judgments and from the order in each of the actions denying a new trial. The respondents moved for a dismissal of the appeals on the ground that, while the trial court received testimony and subsequently entered findings of fact and conclusions of law and judgment in each case, the trial court never vacated or set aside the original judgments, and for that reason the appeals, not having been perfected within one year from the time of the entry of the judgments, were ineffectual.

[1][2] Respondents contend that, where process is served against a defendant corporation in the wrong name, and it answers in that name, judgment taken against it is as valid as if rendered against it in the right name; that the defendant bank did not plead such defense, but proceeded to trial under the name alleged in the complaints; that the failure to plead the misnomer constitutes a waiver; and that the judgments of September 3, 1929, are therefore binding upon the Canistota State Bank. The respondents have adopted inconsistent positions. They first sought to modify the judgments to include the Canistota State Bank, and now for the purpose of determining when the time of appeal commenced to run urge that the first judgments entered were valid and final. The subsequent findings and judgments were entered pursuant to the applications of the respondents, and appellants, without questioning the jurisdiction of the court or the regularity of the proceedings, appeared. Additional testimony was submitted, and the actions were then determined on their merits. If full effect is to be given to the action of the trial court, which is not here questioned, the entry of the subsequent judgments amounted to modification and amendment of the prior judgments. Where a judgment is amended, an appeal will lie therefrom within one year after the amendment, though more than one year after the entry of the original judgment. Brown v. Brown, 49 S. D. 167, 206 N. W. 688. The motion to dismiss is denied.

Under the terms of the reorganization agreement referred to, the depositors representing more than 80 per cent. of the total deposits of the bank agreed to hold the reorganized bank for 20 per cent. of the deposits, and to accept in lieu of the remainder certificates of a trustee which were made payable from the liquidation of certain assets of the bank which were transferred to the trustee. Upon the petition of the superintendent of banks, an order of the circuit court requiring the depositors of the bank to show cause why the bank should not be reorganized as a solvent corporation under the agreement of the depositors and why nonassenting depositors should not be held subject to the terms of the agreement with the same effect as though they had joined in the execution thereof and why their claims should not be treated in all respects as if they had joined in the petition to the court, in the event the bank was reopened for business, was issued. The order directed that a notice of the time and place of hearing be given by publication. Publication was made, and the order to show cause was personally served upon each of the plaintiffs. On the return day, there was no appearance in opposition, and no objections were filed or presented against the action of the superintendent of banks in permitting the reinstatement of the bank, and the circuit court thereupon entered an order decreeing that the depositors of the bank had failed to show cause why the bank should not be reinstated, and approved the action of the superintendent of banks in permitting the reinstatement of the bank as a solvent corporation under the provisions of the statute.

A certificate of deposit dated September 30, 1924, two certificates dated January 2, 1925, and four certificates dated May 15, 1925, issued to the plaintiffs by the Farmers' State Bank of Canistota were received in evidence. The trial court entered findings of fact and conclusions of law, and rendered judgments upon the assumption that the reorganization act, chapter 104, Laws of 1925, was unconstitutional in its application to the certificates of deposit of the plaintiffs herein, and that the act did not go into effect until July 1, 1925, notwithstanding the emergency clause attached thereto and the approval of the act by the Governor on January 31, 1925.

This court has held that a reorganization agreement under the provisions of the 1925 act is not invalid as to nonassenting depositors whose claims did not...