Farm & Home Sav. & Loan Ass'n of Missouri v. Howard

• Decision Date: 29 July 1930
• Citation: 30 S.W.2d 631,224 Mo.App. 532
• Parties: FARM & HOME SAVINGS & LOAN ASSOCIATION OF MISSOURI, APPELLANT, v. MARTIN L. HOWARD, RECEIVER, S. L. CANTLEY, COMMISSIONER OF FINANCE, AND REPUBLIC STATE BANK, RESPONDENT
• Court: Missouri Court of Appeals

30 S.W.2d 631

224 Mo.App. 532

FARM & HOME SAVINGS & LOAN ASSOCIATION OF MISSOURI, APPELLANT, v. MARTIN L. HOWARD, RECEIVER, S. L. CANTLEY, COMMISSIONER OF FINANCE, AND REPUBLIC STATE BANK, RESPONDENT

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from the Greene County Circuit Court, Division 2.--Hon Warren L. White, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Ewing Ewing & Ewing for appellant.

(1) The court erred in not giving appellant's instruction No. 1 at the close of all the testimony. 19 Enc. Plead. & Prac 695-6; 22 C. J. 98; Herf-Frerich Chemical Co. v. Lackawana Line, 85 Mo.App. 667; Williams v. Dittenhoffer, 188 Mo. 134; Clarke v. Adams, 33 Mich. 159. (2) The court erred in refusing appellant's instruction No. 2. State ex rel. v. Fields, 107 Mo. 451; Madison County Bank v. Summa, 79 Mo. 527; 1 Greenleaf Ev., sec. 79; State v. Schar, 50 Mo. 393; Swinhart v. St. L. Sub. Ry. Co., 207 Mo. 423, 433-34; Sands v. Sydnor, 88 Mo.App. 54, 59; Richardson v. Drug Co., 92 Mo.App. 534; Wolff v. Ry. Co., 155 Mo. 130-133; Carpenter v. Devon, 6 Ala. 718; 21 A. & E. Ency. Law (2 Ed.), 589; Sec. 11716, R. S. 1919; Reed v. Allison, 61 Cal. 461; Moore v. Besse, 35 Cal. 184; Hays v. Hogan, 273 Mo. 25; State v. Lackland, 136 Mo. 26; Button Co. v. Shirt Co., 140 Mo.App. 374, 383. (3) The court erred in refusing appellant's instruction No. 3. Empire State Surety Co. v. Nat'l Lumber Co., 200 F. 224; Isham v. Post, 141 N.Y. 100, 38 Am. St. Rep. 766; Grade v. Mariposa County, 132 Cal. 75, 64 P. 117; Wilson v. Insurance Co., 77 N.H. 344, 346; Atherton v. Atherton, 181 U.S. 155, 188, 45 Law Ed. 794; Rosenthal v. Walker, 111 U.S. 185, 28 Law Ed. 395.

Farrington & Curtis and Paul W. Barrett for respondent.

(1) This case was tried before the court without the aid of a jury and its verdict upon appeal will not be disturbed if based on conflicting evidence or if supported by substantial testimony. Woods v. Johnson, 264 Mo. 289, 174 S.W. 375; M. K. & T. Ry. Co. v. American Surety Co., 291 Mo. 92, 236 S.W. 657; Sawyer v. French, 290 Mo. 344, 325 S.W. 126; Smith v. Greenstone (Mo. App.), 208 S.W. 628. (2) Sections 11716 and 11720, R. S. Mo. 1919, are statutes of limitations and the appellant having failed to act within the prescribed time its claim is barred. Bartlett v. McAllister, 316 Mo. 129, 289 S.W. 814; Bowersock Mills Co. v. Citizens Trust Co. (Mo. App.), 298 S.W. 1049; Evans v. Peoples Bank, 6 S.W.2d 655; Childs v. McGirk State Bank, 2 S.W.2d 123. (3) The court did not err in refusing appellant's instruction No. 2. (a) The commissioner of finance and his assistants are public officials. Secs. 11674-11679, R. S. 1919; Ive v. Bailey, 5 S.W.2d 50. (b) There is a presumption that everything done by an officer in connection with the performance of official acts in the line of his duty, is legally done, and absent proof to the contrary, all things are presumed to have been rightfully and legally done. 22 C. J., sec. 69, pp. 130-134; Woolridge v. LaCrosse Lbr. Co., 291 Mo. 239, 236 S.W. 294, 19 A.L.R. 1068; State ex rel. v. National City Bank, 220 Mo.App. 474, 274 S.W. 945; Sanders State Bank v. Hawkins (Tex.), 124 S.W. 84. (4) The burden of proving that the proper notice was not given is on the plaintiff who pleads it and not on the defendant. Instruction No. 5 given by the court properly defined the burden of proof. Secs. 11716 and 11720, R. S. 1919; 22 C. J., sec. 15, p. 70; 22 C. J., sec. 23, p. 80; Fulwide v. Trenton Gas & Light Co., 216 Mo. 582, 116 S.W. 508; Missouri Gas & Electric Co. v. Rea & Page Mill Co., 220 Mo.App. 1067, 279 S.W. 727; Darnell v. Sparks, 142 Mo.App. 460, 127 S.W. 103; Woods v. Cainsville Bk. et al., 11 S.W.2d 56.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is a suit against the respondents to compel the allowance of the claim of appellant against said bank which had failed. Suit was filed in October, 1928, and amended petition filed January 24, 1929, which amended petition in part is as follows:

"Plaintiff further says that at the date said bank failed and was taken over by said bank commissioner and deputy commissioner, this plaintiff had on deposit to its credit in said bank, the amount of one hundred and four and 95/100 ($ 104.95) dollars; and that plaintiff has filed claim against said bank with defendants and applied to defendants to have claim allowed as a general creditor of said bank; that the said defendants have declined to receive claim or allow it for the reason that defendants allege that said claim was presented more than six months after the failure of said bank.

"Plaintiff says that it had no knowledge of the failure of said bank until on or about the 20th day of October, 1928, and had no knowledge its funds were on deposit in said bank until said date; that no notice of the failure of said bank was ever mailed to plaintiff as provided by law, and that by reason of said failure to give notice to this plaintiff, its claim was not barred by reason of any provision of the laws of this State.

"Wherefore, the premises considered, plaintiff asks the court to allow plaintiff's claim as a general creditor of said bank and to direct defendants to pay said claim to plaintiff as a general creditor of said bank."

Afterwards, on the 3rd day of July, 1929, defendant filed answer to the amended petition, admitting that the Republic State Bank is a banking institution, that the plaintiff is a building and loan association, and that on the 12th day of April, 1928, the bank failed and all its property and affairs were taken in charge by S. L. Cantley, commissioner of finance, and that since said date he has been in charge thereof under and by virtue of the laws of this State relating to insolvent banks. This was followed by a general denial, and the answer contained the following averment:

"Further answering, and as a defense to this action, defendant states that said Republic State Bank closed its doors on the 12th day of April, 1928, as hereinabove set forth; that on said date all its assets were delivered to S. L. Cantley, finance commissioner of the State of Missouri; that thereafter, Martin L. Howard was appointed and designated as special deputy commissioner and went into immediate possession and charge of the affairs of said bank; that on the 10th day of May, 1928, all of the creditors of said Republic State Bank including the plaintiff herein were given notice that the last day for filing claims and presenting proofs would be October 1, 1928; that such notice was directed to the plaintiff through the mails, and that in addition thereto such notice was printed and published in the Republic Monitor, a weekly newspaper printed and published in Republic, Missouri, weekly from the 10th day of May, 1928, to the 27th day of September, 1928; that prior to said 1st day of October, 1928, plaintiff herein failed to present its claim or make any proof thereof and that no such claim was ever filed prior to the institution of this action.

"Wherefore, defendant says that by reason of the premises the claim of the plaintiff is barred by sections 11716 and 11720, Revised Statutes 1919, of the State of Missouri, which said section the defendant specifically pleads as a bar to any recovery by plaintiff herein."

On July 3, 1929, a hearing was had before the court without a jury, and at the conclusion of the testimony the court announced that its findings would be for the defendants and after motion for new trial was overruled judgment was entered for the defendant, said judgment entry, caption omitted, is as follows:

"Now on this day come the parties, plaintiff and defendant by their respective attorneys, and this cause now coming on to be heard, the said parties announce ready for trial, thereupon a jury waived by consent, this cause is submitted to the court for hearing and the court proceeds to hear the evidence and being sufficiently advised in the premises, the court finds the issues in favor of the defendant.

"It is therefore considered, adjudged and ordered by the court that the plaintiff take nothing by its suit herein against the defendant but that the same be and is hereby dismissed and that the defendant go hence thereof without day and have and recover of and from the plaintiff all costs in this suit laid out and expended for which execution may issue."

After judgment in due time appeal was taken to this court.

The testimony in the case is simple. There is no controversy as to the failure of the bank, and it was admitted the plaintiff had on deposit in the bank at the time of its failure $ 104.95, S. L. Cantley, commissioner of finance of this State took charge, and Martin L. Howard was appointed and took charge as special deputy commissioner, and caused to be published in a county paper, as required by law, a notice to all persons having claims against said bank to make proof thereof within four months from May 10, 1928, and that the last day for presenting said proofs would be October 1, 1928, and that the plaintiff did not present its claim within the four months nor until after the 20th of October, 1928, and the claim was denied by the commissioner of finance because it was not presented within the time designated for filing claims.

The testimony of the plaintiff was that its principal office was at Nevada, Missouri, and that it didn't know it had a deposit in the bank until the 20th day of October, 1928, the amount having been deposited there by one of its local agents or collectors, and not reported to its office at Nevada, and that no notice was received advising the plaintiff of the bank's failure or of the time within which proofs of claim could be filed, and that lack of knowledge of the deposit, and lack of...