Hall v. Burrell

• Decision Date: 13 May 1912
• Citation: 124 P. 751,22 Colo.App. 278
• Parties: HALL v. BURRELL.
• Court: Colorado Court of Appeals

124 P. 751

22 Colo.App. 278

HALL v. BURRELL.

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, Otero County; J.E. Rizer, Judge.

Proceeding for the adjustment of a claim of D.V. Burrell against the State Bank of Rocky Ford, in the hands of G.M. Hall, as receiver. From an order directing payment, the receiver appeals. Affirmed.

Fred A Sabin, of La Junta, for appellant.

John H Voorhees, of Pueblo, for appellee.

SCOTT P.J.

The following agreed statement presents the facts in this case:

"D.V. Burrell was a depositor of the State Bank of Rocky Ford; that at the time of the failure of said bank he had on deposit in said bank a balance of $627.71; that prior to said date, to wit, on the 2d day of October, 1907, he had made and executed to the State Bank of Rocky Ford his certain promissory note for the sum of $6,000 due December 20, 1907, interest at 10 per cent.; that prior to the maturity of said note the same, together with other notes, were bye the State Bank of Rocky Ford assigned as collateral to the First National Bank of Pueblo, Colo., for a loan aggregating the amount of $56,000, made by the First National Bank of Pueblo, Colo., to the State Bank of Rocky Ford, and for which there was assigned, at the time of the closing of the said the State Bank of Rocky Ford, $116,000 of notes; that, subsequent to the appointment of the receiver, the petitioner herein, by application to the district court, was granted leave to pay said note to the First National Bank of Pueblo, Colo., which was demanding payment of the same, without waiver of any rights of offset which might exist in his favor; that he thereupon paid on said note $3,000; that the note, when hypothecated with the First National Bank of Pueblo, was not yet due; that the debt to secure which this note, and others aggregating $116,000, were hypothecated with the First National Bank of Pueblo, is not yet fully paid; that none of the collateral so hypothecated has been turned back to the receiver of the State Bank of Rocky Ford; that the balance of the collateral in the hands of the First National Bank of Pueblo, and unpaid, is of uncertain value."

Upon hearing, the court directed that the receiver collect and pay, out of the proceeds of the returned collaterals by the First National Bank of Pueblo, appellee's deposit pro rata with others similarly situated, according to the amount of their several deposits. From this order the receiver appealed.

The appellant, the receiver of the State Bank of Rocky Ford, complains, first, that the judgment was rendered upon the basis of a statement of fact by the court not justified by the record--that is to say, that the court recites as a statement of fact "that each of the claimants, including the appellee, having paid the First National Bank of Pueblo their respective notes to the State Bank of Rocky Ford," while it is agreed in the statement of facts admitted "that he thereupon paid on said note $3,000"; that, the note having been for $6,000, it was not paid as recited by the court in the statement entered. Counsel then contends that the court is restricted to the facts admitted in the case, and hence the order of the court for such reason may not be sustained. If this were a statement of the whole matter in this regard, it is purely technical in this case; but the order appealed from was made in the receivership case proper, then pending, and in which the court had before him all the facts bearing upon the receivership. Hence he was not confined to the stipulation for his finding that the entire note had been paid, which must have appeared from the record of the whole case, in which he was at that time determining but one feature.

It was admitted by counsel on oral argument that at the time the court entered the order the entire note had been paid. If so, the court had the fact before him, and it was his duty to take note of it in entering the order complained of. The objection is trivial and without merit but it is so...