Fulton v. State, Ex Rel. Gen. Motors Corp., 25309

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDAY, J.
Citation200 N.E. 636,130 Ohio St. 494
Decision Date11 March 1936
Docket Number25309
PartiesFulton, Supt. Of Banks, v. The State, Ex Rel. General Motors Corp.

200 N.E. 636

130 Ohio St. 494

Fulton, Supt. Of Banks,
v.

The State, Ex Rel. General Motors Corp.

No. 25309

Supreme Court of Ohio

March 11, 1936


Banks and banking - Liquidation - Claim for preference "filed," when - Section 710-98a, General Code - Three-months limitation after publication of notice - Depositing preference claim in mail insufficient, when.

1. The term "filed" employed in Section 710-98a, General Code, requires actual delivery of the preference claim into the official custody and control of the Superintendent of Banks.

2. The depositing of a preference claim in the mails, properly addressed to the Superintendent of Banks, and postage prepaid, mailed before but delivered after the expiration of the time [130 Ohio St. 495] limit prescribed by Section 710-98a, General Code, does not constitute a filing under the statute.

This is an action in mandamus which originated in the Court of Common Pleas of Cuyahoga county, and was brought on relation of the defendant in error General Motors Corporation to compel the Superintendent of Banks of the state of Ohio to accept defendant in error's claim for preference and to approve or reject the same.

The petition alleged substantially the following facts: That the General Motors Corporation had a claim against the liquidator of the Union Trust Company of Cleveland, Ohio, for $26,474.09, arising out of a deposit of items for collection, totalling the abovementioned amount, to its credit with the Union Trust Company on February 25, 1933, the last day on which it was open; that the proceeds of said items did not reach the Union Trust Company until after February 25, 1933; that pursuant to the provisions of Section 710-90, General Code, the Superintendent of Banks gave notice by publication in a newspaper of general circulation in Cuyahoga county, the last of which publications was made on July 19, 1933, calling upon all persons having preference claims against the bank to file the same with him and to make legal proof thereof at the main office of said bank; that according to the provisions of Section 710-98a, General Code, a preference claim must be filed with the Superintendent of Banks on or before three months after the expiration of the last notice required by Section 710-90, General Code; that on October 18, 1933, the General Motors Corporation deposited its claim for preference in then mails in Detroit, Michigan, properly addressed to the Superintendent of Banks, which in the ordinary [130 Ohio St. 496] course of mail should have reached his office on October 19, 1933, the last day upon which such claims could be filed, but through some delay in the mails was not actually received until October 20, 1933; and that the Superintendent of Banks refused to accept the claim for preference on the ground that October 19th was the last day for filing.

This action in mandamus was then instituted in the Court of Common Pleas of Cuyahoga county to compel acceptance of the claim and its approval or rejection.

The Superintendent of Banks filed a demurrer to the petition, which demurrer was sustained. Error proceedings were then prosecuted to the Court of Appeals, wherein the judgment of the lower court was reversed. To reverse the judgment of the Court of Appeals error is prosecuted to this court.

Mr. John W. Bricker, attorney general, Mr. Lewis F. Laylin and Mr. Thomas J. Herbert, for plaintiff in error.

Messrs. Krueger, Gorman & Davis, for defendant in error.

DAY, J.

It is the contention of plaintiff in error that under Section 710-98a, General Code, a claim for preference cannot be considered "filed," until it is physically received by the Superintendent of Banks, or by a special deputy in charge of liquidation of the particular bank, and that since the claim of defendant in error was not received "on or before three months after the last publication of notice," no duty reposed upon him to consider it.

Defendant in error, however, contends that the requirements of the General Code...

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