First Am. Bank & Trust Co. v. Ellwein

• Decision Date: 12 April 1972
• Docket Number: No. 8815,8815
• Parties: FIRST AMERICAN BANK & TRUST COMPANY et al., Plaintiffs and Respondents, v. G.W. ELLWEIN, State Examiner and Commissioner, et al., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 107

198 N.W.2d 107

FIRST AMERICAN BANK & TRUST COMPANY et al., Plaintiffs and Respondents, v. G.W. ELLWEIN, State Examiner and Commissioner, et al.,

Defendants and Appellants.

Civ. No. 8815.

Supreme Court of North Dakota.

April 12, 1972.

Syllabus by the Court

Our decision in this appeal is governed by our opinion issued in First American Bank & Trust Company v. Ellwein, 198 N.W.2d 84.

Helgi Johanneson, Atty.Gen., Bismarck, and Arley R. Bjella, Frank F. Jestrab, John R. Gordon, Sp.Asst.Attys.Gen., Williston, for defendants and appellants.

Frederick E. Saefke, Jr., and Thompson, Lundberg & Nodland, Bismarck, for plaintiffs and respondents.

TEIGEN, Judge.

This appeal is from a final judgment of the district court of Burleigh County entered on January 26, 1972, wherein it adjudged two orders issued by the State Examiner on January 17, 1972, null and void ab initio.

The parties and issues of this case are identical with the parties and issues in the case entitled First American Bank & Trust Company v. Ellwein, 198 N.W.2d 84, which this court decided on this date. Our decision in that case governs this case. Therefore, we reverse that part of the judgment declaring null and void the order of the State Examiner to take possession of the books, records and other properties of First American Bank & Trust Company, issued pursuant to Section 6-07-04, N.D.C.C., and we affirm that part of the judgment which holds as null and void the purported order of the State Banking Board making various findings with respect to the affairs of the respondent bank and ordering it to follow certain directives set forth therein or, in the alternative, to show cause before the State Banking Board why a receiver should not be appointed.

Thus the judgment from which this appeal is taken is reversed in part and affirmed in part and we remand the case to the district court for entry of a judgment on remittitur accordingly, without statutory cost to either party.

ERICKSTAD, Acting C.J., and C.F. KELSCH, District Judge, concur.

STRUTZ, C.J., and PAULSON, J., deeming themselves disqualified, did not participate; C.F. KELSCH and EMIL A. GIESE, District Judges of the Sixth Judicial District, sitting in their stead.

EMIL A. GIESE, District Judge.

The dissent filed in the case cited in the majority opinion, 198 N.W.2d 84, is adopted.

KNUDSON, J., concurs.