First State Bank of Bourbon v. Binkley (In re Liquidation of Bourbon Banking Co.), 27420.

• Decision Date: 21 January 1941
• Docket Number: No. 27420.,27420.
• Citation: 31 N.E.2d 52,218 Ind. 96
• Parties: In re LIQUIDATION OF BOURBON BANKING CO., BOURBON. FIRST STATE BANK OF BOURBON v. BINKLEY et al.
• Court: Indiana Supreme Court

218 Ind. 96

31 N.E.2d 52

In re LIQUIDATION OF BOURBON BANKING CO., BOURBON.FIRST STATE BANK OF BOURBON

v.BINKLEY et al.

No. 27420.

Supreme Court of Indiana.

Jan. 21, 1941.

On petition for rehearing.

Original mandate modified.

For original opinion, see30 N.E.2d 311.Appeal from Marshall Circuit Court; Eli F. Seebirt, Special judge.

Walter R. Arnold, John Degnan, Charles Dohnalek, and Robert Zimmerman, all of South Bend, for appellants.

Claude D. Carson, Don F. Kitch, and Delph McKesson, all of Plymouth, for appellee.

FANSLER, Judge.

In his petition for rehearingthe appellee Binkley indicates that Mr. Beck, who was president of both banks when the ‘undertaking’ was entered into between them, is living and available as a witness to the terms of the agreement, and that there are certain notes still extant and in the possession of the First State Bank of Bourbon, which are part of the original notes transferred, and that they are available as evidence of the character of the indorsement, if any.In view of these facts, it has been concluded that the original mandate should be modified, and that the appellant's motion for a new trial should be sustained.

In the original opinion questions involving the claimant's contention that the questions involved had been fully adjudicated in a former proceeding were not passed upon.The proceedings in question arose upon a petition by the appellee Binkley for an order enjoining the banking department from proceeding further with liquidation proceedings upon the ground that the Bourbon Banking Company was solvent and that there were no claims against it.The First State Bank of Bourbon was not a party to the proceeding.The court found that the note here in question was a valid and subsisting obligation, but if the...