Foster v. Stewart

• Decision Date: 07 April 1923
• Docket Number: 24,821
• Citation: 113 Kan. 402,214 P. 429
• Parties: F. H. FOSTER, as State Bank Commissioner, et al., Plaintiffs, v. E. T. STEWART, Defendant
• Court: Kansas Supreme Court

214 P. 429

113 Kan. 402

F. H. FOSTER, as State Bank Commissioner, et al., Plaintiffs, v. E. T. STEWART, Defendant

No. 24,821

Supreme Court of Kansas

April 7, 1923

Decided January, 1923.

Original proceeding in mandamus.

Motion writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Insolvent Bank--Receiver Entitled to all Notes Guaranties and Property of the Bank. Mandamus will lie at the suit of the receiver of a bank organized and operating under the laws of this state against the president of the bank to compel him to turn over to the receiver all the notes, guaranties, and documents belonging to the bank.

2. SAME--Motion to Quash Alternative Writ. On motion to quash an alternative writ of mandamus, the writ only can be considered.

Clad Hamilton, Clay Hamilton, both of Topeka, and Donald Muir, of Anthony, for the plaintiffs.

T. A. Noftsger, of Wichita, and Vernon Day, of Anthony, for the defendant.

OPINION

MARSHALL, J.:

By this action, the plaintiffs, F. H. Foster, as state bank commissioner, and B. V. Curry, as receiver of the Citizens State Bank of Harper, seek to compel the defendant to deliver to the receiver certain papers and documents, described as notes and guaranties, in the hands of the defendant as president of the bank and belonging to it at the time the receiver took possession of it and of its assets. An alternative writ of mandamus has been issued.

The defendant has filed a motion to quash the alternative writ on the ground that it does not state facts sufficient to constitute a cause of action; that the plaintiffs have a plain and adequate remedy in the ordinary course of law; and that there is a bona fide contention between the plaintiffs and the defendant concerning the ownership of the property described in the writ. The writ alleges that the defendant is president of the bank; that B. V. Curry is its receiver; that the defendant has in his possession, as president of the bank, for its use and benefit, certain notes and guaranties which came into his hands as such president; that he illegally and wrongfully withholds them from the receiver; and that the receiver is entitled to the possession of the same. The defendant argues that the plaintiffs have a plain and adequate remedy at law and that therefore mandamus will not lie.

Section 715 of the code of civil procedure provides that--

"The writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law."

The defendant contends that the plaintiff may obtain possession of the notes and guaranties by an action in replevin, and cites in support of that contention section 188 of the code of civil procedure, which reads:

"In an action to recover the possession of specific personal property, the court or judge in vacation may for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto, by attachment, and may examine either party as to the possession or control of the property."

If an action in replevin were commenced and a writ issued and placed in the hands of a sheriff, he must find the described property before he can take it. If the defendant should then refuse to deliver the property on the demand of the sheriff, an application to compel the defendant would then become necessary under ...