Federal Deposit Ins. Corp. v. Farmers Bank of Newtown

• Citation: 180 S.W.2d 532,238 Mo.App. 350
• Parties: Federal Deposit Insurance Corporation, Appellant, v. The Farmers Bank of Newton, Respondent
• Decision Date: 08 May 1944
• Court: Court of Appeals of Kansas

180 S.W.2d 532

238 Mo.App. 350

Federal Deposit Insurance Corporation, Appellant, v. The Farmers Bank of Newton, Respondent

Court of Appeals of Missouri, Kansas City

May 8, 1944

Appeal from Sullivan Circuit Court; Hon. G. Derk Green, Judge.

Reversed and remanded.

Fred Bellemere, Roy W. Rucker, Francis C. Brown and James M. Kane for appellant.

John S Cavanaugh and John H. Russell of counsel.

(1) Under the provisions of the federal law the appellant is entitled to all rights of the insured depositors of the bank including the right to receive interest on its claim. Dorman v. Adams, 247 Ky. 678, 57 S.W.2d 534; Fed Deposit Ins. Corp. v. Citizens State Bank of Niangua, 130 F.2d 102; Fed. Deposit Ins. Corp. v. Oconto County State Bank, 241 Wis. 369, 6 N.W.2d 353, rehearing 241 Wis 569, 7 N.W.2d 602; Fed. Deposit Ins. Corp. v. Wilhoit, 52 F.Supp. 308; Fed. Deposit Ins. Corp. v. Wilhoit, Director of Banking et al., Court of Appeals of Kentucky, June 18, 1943; Fed. Deposit Ins. Corp. v. Winton, 131 F.2d 780, 782; Stewart v. Kahn, 78 U.S. 493, 504; U.S. v. Mo. Pac. R.R., 278 U.S. 269, 277; Van Camp & Sons v. American Can Co., 278 U.S. 245, 253; Wilhoit, Director of Banking, v. Fed. Deposit Ins. Corp., November 29, 1943; Yonkers v. Downey, 309 U.S. 590; Subrogation and Assignment Contract executed by each depositor to Federal Deposit Insurance Corporation; 12 U. S. C., sec. 264 (1)-(7). (2) The depositors of a closed state bank in Missouri are entitled to interest at the legal rate on their claims from the date of suspension before any distribution to the stockholders. Bates v. Farmers Savings Bank of Ankeny, 231 Iowa 1151, 3 N.W.2d 517; Am. Iron & Steel Mfg. Co. v. Seaboard Air Line Ry. Co., 233 U.S. 261, 266; Craig v. Stacy, 330 Mo. 569, 50 S.W.2d 104; Elliott v. First Inland Nat. Bank (Ore.), 32 F.Supp. 839; Ex Parte Stockman, 70 S.C. 31, 48 S.E. 736; Fed. Deposit Ins. Corp. v. Leggett, 164 S.W.2d 882; Fed. Deposit Ins. Corp. v. Citizens State Bank of Niangua, 130 F.2d 102; Fed. Deposit Ins. Corp. v. Oconto County Savings Bank, 241 Wis. 369, 6 N.W.2d 353, rehearing 241 Wis. 369, 7 N.W.2d 602; Fed. Deposit Ins. Corp. v. Wilhoit, Ky. , S.W.2d , set forth in Appendix; Flynn v. American Banking & Trust Co., 104 Me. 141, 69 A. 771, 775; Hackney v. Hood, 203 N.C. 486, 166 S.E. 323, 324; Hoffman v. Unger (W. Va.), 24 S.E.2d 911; Jones v. Skinner, 159 Ore. 325, 80 F.2d 60; Lamar v. Taylor, 141 Ga. 227, 80 S.E. 1085, 1092; Lippitt v. Thames Loan & Trust Co., 88 Conn. 185, 90 A. 369, 377; People v. Merchants Trust Co., 187 N.Y. 293, 79 N.E. 1004; Reichert v. Met. Trust Co., 293 Mich. 76, 291 N.W. 229; Richmond v. Irona, 121 U.S. 27; State v. Park Bank & Trust Co., 151 Tenn. 195, 268 S.W. 638, 642, 39 A.L.R. 449; Stein v. Delano (C. C. A. 3), 121 F.2d 975, cert. den., 314 U.S. 655, rehearing den., 314 U.S. 711, 713; The Nat. Bank of the Commonwealth v. The Mechanics Nat. Bank, 94 U.S. 437; Ticonic Nat. Bank v. Sprague, 303 U.S. 406; Wood v. Rainey, 2 Cal. (2d) 338, 41 P.2d 328; R. S. Mo., Secs. 3226, 7955; 7 Am. Juris., sec. 407, p. 287; 15 Am. Jur., sec. 160, p. 578; 7 C. J., sec. 848, p. 849; 32 C. J., sec. 178, p. 884; 9 C. J. S., sec. 527, p. 1013; 3 Michie, Banks and Banking, p. 329; 3 Zollmann, Banks and Banking, sec. 1781, p. 315; 9 Zollmann, Banks and Banking, sec. 6482, p. 486; 32 Michigan Law Review, p. 1069. (3) Appellant is entitled to interest on its claims from the date of the closing of the bank. Bates v. Farmers Savings Bank of Ankeny, 231 Iowa 1151, 3 N.W.2d 517; Craig v. Stacy, 330 Mo. 569, 50 S.W.2d 104; Fed. Deposit Ins. Corp. v. Citizens State Bank of Niangua, 130 F.2d 102; Wilhoit, Director of Banking, v. Fed. Deposit Ins. Corp., November 29, 1943.

Rex H. Moore, Wilfred Wimmell and W. Raleigh Gough for respondents and cross-appellants.

(1) By filing its claim without demanding interest, by suffering the judgment, allowing and ordering payment of the claim without interest, to become final, and by accepting payment of the principal, plaintiff lost any right to sue for the interest. Interest cannot be allowed unless demanded in the pleadings. Reutner, Klaus & Co. v. Nelson Chesman & Co. (Mo. App.), 9 S.W.2d 655, 660; Hannan, Hickey Bros. Const. Co. v. Chicago, B. & O.R. Co. (Mo.), 226 S.W. 881, 882. The judgment allowing plaintiffs' claim without interest and ordering it paid was res adjudicata of plaintiffs' right to interest, and resulted in a "merger" of the claim for interest. 9 C. J. S. 1010, sec. 526; 34 C. J., 752, 753, sec. 1163, 762, sec. 1175, and 818-822, sec. 1236. The later claim for interest was an attempted "splitting" of plaintiff's entire claim against the bank. 1 C. J. S., 1306-1308, sec. 102, and 1323; Wickersham v. Whedon, 33 Mo. 561; Merchants Nat. Bank v. Witmer, 171 Mo.App. 352, 157 S.W. 811; Shelley v. Ozark Pipe Line Corp., 2 S.W.2d 115. Plaintiff's acceptance of the principal waived its claim for interest. 25 C. J. S., 537, 33 C. J., 255; 100 A.L.R. 96, 105; Stone v. Bennett, 8 Mo. 41; Arnold v. Sedalia Natl. Bank, 100 Mo.App. 474, 74 S.W. 1038; Stewart v. Barnes, 153 U.S. 456, 38 L.Ed. 781. The proper remedy for plaintiff was to move to set aside or modify, or to appeal from, the judgment ordering payment of its claim without interest -- the present proceeding is a collateral attack upon such judgment. Fed. Dep. Ins. Corp. v. Citizens State Bank of Niangua (8th Cir.), 130 F.2d 102, 105. (2) Plaintiff's claim for interest was barred by limitation under Sections 7928 and 7932, R. S. 1939. Secs. 7928 and 7932, R. S. 1939. These statutes apply to the case at bar notwithstanding the discharge of the finance commissioner by the court. First Nat. Bank v. Holt (Mo. App.), 158 S.W.2d 229, 231; Commerce Trust Co. v. Farmers Exchange Bank of Gallatin, 332 Mo. 979, 61 S.W.2d 928, 930; Sec. 7935, R. S. 1939. The rule with respect to barring of claims against a decedent's estate, so as to preclude maintenance of a suit against distributees in the absence of the claim filed within the time prescribed by the nonclaim statute is apropos and persuasive. Beekman v. Richardson, 150 Mo. 430, 435; Curtin v. Woolley (Mo. App.), 114 S.W.2d 191. Plaintiff cannot escape the bar of the statute by the argument that interest was a mere "incident" to its claim for principal, because plaintiff failed to take appropriate steps in the liquidation proceeding to secure the payment of interest upon its claim. Fed. Deposit Ins. Corp. v. Citizens State Bank of Niangua (8th Cir.), 130 F.2d 102, 105. (3) The judgment of the trial court gave plaintiff the maximum interest it could recover in any event. Sec. 264, Title 12, U.S.C. A., par. (1) (7); Sec. 7949, R. S. 1939, par. 3b.

Bland, J. Cave, J., concurs.

OPINION

BLAND

This is a suit by the Federal Deposit Insurance Corporation, against the Farmers Bank of Newton, in liquidation, a corporation organized under the laws of this State, and the agent of the stockholders of the bank, for interest upon its claim as subrogee of depositors of the bank, for the amount it paid them pursuant to its insurance obligation under title 12 U. S. C., sec. 264.

The case was tried by the court without the aid of a jury, resulting in a judgment for plaintiff in the amount of $ 567.85, being for interest beginning with the time of the filing of its claim with the Commissioner of Finance, but denying interest to that date from the date the bank closed. Plaintiff has appealed, and defendant has prosecuted a cross-appeal because of the allowance to plaintiff of any interest whatsoever.

The facts show that on February 2, 1939, the bank was closed, and its affairs were taken over by the Finance Commissioner. Prior to June 14, 1939, plaintiff paid all of the insured depositors the amounts of their insured deposits, without interest, and obtained from each depositor an assignment of his claim based upon his deposit. These assignments, among other things, provided:

"For the purpose of subrogating the Federal Deposit Insurance Corporation to all of the claimant's rights against said closed insured bank arising out of the INSURED DEPOSIT in the amount shown above, to the extent of the amount paid the receipt thereof is hereby acknowledged, claimant hereby assigns, transfers and sets over unto said Corporation all claims against said closed insured bank and its stockholders arising out of said insured deposit, together with all evidences of such indebtedness held by claimant".

On February 17, 1939, the Commissioner gave notice to all creditors of the bank to file their claims on or before June 17, 1939.

On or about June 14, 1939, plaintiff filed a claim with the Commissioner for $ 12,449.11, which it had paid to the depositors claiming preference or priority therefor and a general claim for $ 70,190.24 paid to depositors, and these claims were approved by the Commissioner in the total amount of $ 82,639.35 on June 17, 1939. Thereafter, plaintiff filed an additional claim for eighty cents and this was approved by the Commissioner on June 30, 1939. In none of these claims was any interest asked.

In July, 1939, the Commissioner filed in the court below a petition for an order approving his action in approving and classifying claims, which set out the claims of plaintiff and their amounts. This petition stated that the part of plaintiff's claim based upon "preferred" claims should be given priority, in the amount of $ 12,449.11. The petition also listed other claims in the amount of $ 331.05, which had been rejected by the Commissioner.

On July 18, 1939, the court made an order upon said petition classifying plaintiff's claim upon "preferred" deposits in the amount of $ 12,449.11 as a preferred and prior claim, and approving the acts of the Commissioner in approving all general claims as set out...