Ex parte Wachovia Bank & Trust Co.

• Decision Date: 06 April 1931
• Docket Number: 13070.
• Citation: 158 S.E. 214,160 S.C. 104
• Parties: Ex parte WACHOVIA BANK & TRUST CO. v. PEOPLE'S BANK OF DARLINGTON et al. NETTLES et al.
• Court: South Carolina Supreme Court

158 S.E. 214

160 S.C. 104

Ex parte WACHOVIA BANK & TRUST CO.

NETTLES et al. v. PEOPLE'S BANK OF DARLINGTON et al.

No. 13070.

Supreme Court of South Carolina

April 6, 1931

Appeal from Common Pleas Circuit Court of Darlington County; E. C Dennis, Judge.

Suit by J. L. Nettles and others against the People's Bank of Darlington, in which G. B. Brasington was appointed receiver for defendant, and the Wachovia Bank & Trust Company intervened. From a decree confirming a master's report disallowing intervener's claim to preference, intervener appeals.

Affirmed.

Mitchell & Horlbeck, of Charleston, and Whitlock, Dockery & Shaw, of Charlotte, N. C., for appellant.

Samuel Want, of Darlington, for respondent.

COTHRAN J.

Upon further consideration of this matter, in connection with the opinion filed February 17, 1931, it is ordered that said opinion be withdrawn and the following substituted in lieu thereof:

An opinion was filed in this case on August 27, 1930, affirming the decree of the circuit judge. Thereafter, upon a petition for a rehearing filed by the appellant, an order was passed granting the petition and setting the case down for oral argument at the October term, the order also providing that counsel representing any other interests which may be affected by the decision be allowed to participate in the argument orally or by briefs. The rehearing was had at the October term, at which, in addition to oral arguments and the original briefs of counsel, a brief was filed by a number of attorneys representing interests which would be affected by the decision.

Thereafter on February 17th, an opinion was filed in which the points under discussion were limited to foreign banks. In view of the fact that counsel representing domestic banks as well as those representing foreign banks fully argued all questions involving the constitutionality of the act as applied to domestic as well as foreign banks, all questions affecting the constitutionality of the act hereinafter quoted have by consent been fully discussed, and are herein considered and decided.

The petitioner, a forwarding bank, claims priority in the distribution of the assets of a bank in the hands of a receiver, under the following circumstances:

A few days before October 27, 1928, certain customers of the Wachovia Bank & Trust Company of Winston-Salem, N. C deposited with it for collection a number of items aggregating $507.60; they consisted of checks drawn by depositors of the People's Bank of Darlington, upon the bank, and were mailed by the Wachovia Bank directly to the People's Bank for collection and remittance. The People's Bank charged the amounts of the checks to the respective depositors, and remitted to the Wachovia Bank a cashier's check for $507.60, drawn upon the National Park Bank of New York. At that time the People's Bank had on deposit in the New York bank more than enough to pay the cashier's check. On October 29, 1928, the People's Bank closed its doors, which information was received by the New York bank before the presentation of the cashier's check; they accordingly refused payment of the check. The Wachovia Bank filed its claim with the receiver of the People's Bank, claiming preference in the distribution of the assets of the insolvent bank. The receiver declined to recognize the claim as a preferred one, and paid to the Wachovia Bank its regular pro rata. The Wachovia Bank then intervened in the main cause, and moved for an order recognizing its claim to preference. The receiver filed a return to the petition, and the matter was referred to the master of Darlington county. He filed a report disallowing the claim to preference, and the matter came on to be heard by his honor Judge Dennis upon exceptions to the master's report. He filed a decree confirming the master's report, and from it the Wachovia Bank has appealed to this court.

The petitioner is claiming priority under the Act of 1927, 35 Stat. 369, which is in full as follows:

"An act to define the liability of banks doing business in this State when receiving for collection any check, note or other negotiable instrument.

"Section 1. Rights of Banks in Forwarding Items for Collection--Proviso.--Be it enacted by the General Assembly of the State of South Carolina: Any bank, banker or trust company hereinafter called bank, organized under the laws of, or doing business in this State, receiving for collection or deposit any check, note or other negotiable instrument drawn upon or payable at any other bank, located in another city or town, whether within or without this State, may, at its own option, forward such

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