Farmers' & Merchants' Bank of Holstein v. German Nat. Bank of Lincoln

• Decision Date: 09 November 1899
• Court: Nebraska Supreme Court
• Parties: FARMERS' & MERCHANTS' BANK OF HOLSTEIN ET AL. v. GERMAN NAT. BANK OF LINCOLN.

59 Neb. 229

80 N.W. 820

FARMERS' & MERCHANTS' BANK OF HOLSTEIN ET AL.

v.GERMAN NAT. BANK OF LINCOLN.

Supreme Court of Nebraska.

Nov. 9, 1899.

Syllabus by the Court.

1. Notice of an application of the appointment of a receiver is required to be given at least five days before the proposed hearing. The party adverse to the application may waive the statutory notice, and will be held to have done so when he has appeared and resisted the application entirely upon other grounds.

2. When proper notice has been given, or the parties interested have voluntarily appeared, the court may appoint as receiver a suitable person other than the one proposed or named by the plaintiff or applicant, without giving formal notice of such proposed action to the parties.

3. The application or petition for a receiver should be verified by the applicant. But verification is not essential to jurisdiction, and the omission to verify may be waived.

4. When a cause is remanded by this court with directions as to further proceedings, the court below has no power to do anything but carry out the directions thus given it.

Error to district court, Lancaster county; Cornish, Judge.

Action by the German National Bank of Lincoln against the Farmers' & Merchants' Bank of Holstein and others. Judgment for plaintiff, and defendants bring error. Affirmed.Capps & Stevens and F. A. Boehmer, for plaintiffs in error.

Lamb & Adams, for defendant in error.

NORVAL, J.

This cause was before us on a former occasion. German Nat. Bank v. Farmers' & Merchants' Bank, 54 Neb. 593, 74 N. W. 1086. The suit was to enforce the constitutional liability of the stockholders of the Farmers' & Merchants' Bank. When the cause was here before, no receiver had been appointed to make the collections, and disburse the moneys to the creditors of the defunct bank. After the reversal of the judgment the district court appointed Elmer B. Stevenson receiver to collect from the several stockholders of the defendant corporation the several amounts respectively assessed and decreed against each of them. The Farmers' & Merchants' Bank and the stockholders have severally prosecuted this error proceeding.

The point is first made that the receiver was appointed without notice to the defendants, and therefore such appointment is void. The statute requiring the giving of notice of an application for a receiver is mandatory, and an appointment made without such notice, in the absence or without the consent of the party affected thereby, is invalid. Code Civ. Proc. § 274; Johnson v. Powers, 21 Neb. 292, 32 N. W. 62. But the requirements of the statute in regard to notice may be waived, and should be so regarded where the parties have appeared in court and resisted the application for receiver on grounds other than the want of proper notice. The object of the statute relative to the giving of notice was to afford the parties interested an opportunity to resist the application, and when there has been a voluntary appearance without notice the purpose of the statute is accomplished, and the giving of the statutory notice is waived unless the want of notice is at the time urged as a reason why a receiver should not be appointed. In the case at bar, five days' notice in writing was given the defendants of the time and place when the plaintiff would apply to the court for the...