Harrisburg Nat. Bank v. Skinner

• Decision Date: 16 November 1937
• Citation: 73 P.2d 363,157 Or. 569
• Parties: HARRISBURG NAT. BANK et al. v. SKINNER, Superintendent of Banks, et al.
• Court: Oregon Supreme Court

73 P.2d 363

157 Or. 569

HARRISBURG NAT. BANK et al. v. SKINNER, Superintendent of Banks, et al.

Supreme Court of Oregon

November 16, 1937

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Suit by the Harrisburg National Bank and others against Mark Skinner Superintendent of Banks and ex officio liquidating officer of the Junction City State Bank, an insolvent bank, and the Junction City State Bank. From a decree dismissing the suit plaintiffs appeal.

Affirmed.

This is a suit in equity brought to impress a trust upon assets which came into the hands of Mark Skinner, as superintendent of banks and ex officio liquidating officer of the Junction City State Bank, an insolvent banking corporation.

The case arises out of a contract entered into on January 10 1928, by and between the plaintiffs and appellant, Harrisburg National Bank of Harrisburg, Or., and the defendant and respondent, Junction City State Bank, pursuant to which the Junction City bank assumed the deposit liability of the former institution and took over its assets. By the terms of this contract, it was agreed that the Junction City bank would liquidate such assets with reasonable expedition, and that "as soon as the second party (Junction City Bank) has liquidated enough of the said assets to realize sufficient therefrom, together with the cash, bonds and warrants as will equal the total amount of the deposit liability that the said second party has hereby assumed, then the said second party will proceed to liquidate the balance of said assets and place the proceeds received from the balance of said liquidation to an account to be held in the bank of the second party under the name of the 'Harrisburg National Bank Stockholders Account', and the liquidation committee of the first party to be appointed by the first party is authorized to draw against said account for any necessary liquidation expense including the care and maintenance of the assets and for the payment of dividends after the amount equal to the deposit liability aforesaid assumed by the second party has been realized and collected and retained by the second party."

According to the complaint, the Junction City bank paid the depositors of the Harrisburg bank and reimbursed itself for such payment from the liquidation of the assets of the Harrisburg Bank and in addition, collected from such assets the sum of $7,345.42, but, contrary to the terms of the contract, did not deposit such sum to the credit of the liquidating committee but held it in trust, separate and apart, from the assets of the bank, and this sum, it is alleged, came into the possession of the superintendent of banks upon the insolvency of the Junction City bank, and is a trust fund which the plaintiffs are entitled to have paid to them from the moneys in possession of the superintendent of banks as liquidating officer of the Junction City bank.

In the answer filed by the defendants, besides certain denials and affirmative allegations, which for the purpose of this opinion we deem it unnecessary to set out, it is alleged that the Junction City State Bank, on the 11th of February, 1932 became insolvent and closed its doors and turned over its assets to the superintendent of banks, pursuant to the provisions of chapter 278, page 447, Oregon Laws 1931; that, further, pursuant to such provisions, notice was published weekly for 3 consecutive months in a weekly newspaper of general circulation, published at Junction City, in Lane county, Or., calling upon all persons who might have claims against said bank to present the same to the superintendent of banks and to make legal proof thereof within 90 days from the first date of publication of the aforesaid notice, and that no verified claim of any kind has ever been made, filed, or presented by the plaintiff to the superintendent of banks, and no verified petition for a preference has been filed with the superintendent of banks within 90 days from the date of publication of the aforesaid notice, or at any time. It is further alleged that the superintendent of banks was not notified in writing of plaintiffs' intention to commence action prior to the filing of the complaint herein, and that this suit was not commenced by the plaintiffs within the time provided by section 29, chapter 278, page 468, Oregon Laws 1931. For these reasons, it is asserted that plaintiffs are barred from maintaining this suit.

The circuit court in a memorandum opinion held that the contract above referred to created the relation of debtor and creditor and that no trust or agency existed between the plaintiff and defendant banks, and entered a decree dismissing the suit. From this decree the plaintiff has appealed.

Mark v. Weatherford, of Albany (Mark V. Weatherford and J. K. Weatherford, Jr., both of Albany, on the brief), for appellants.

Sidney Graham, of Portland (Chas. A. Hardy, of Eugene, and Sidney Graham, of Portland, on the brief), for respondents.

In the view that we take of the legal question arising under the affirmative allegations of the answer, the substance of which has been stated, we find it unnecessary to determine whether or not the contract or the conduct of the defendant bank under the contract created a trust relationship between the two banks with respect to moneys received by the Junction City bank in excess of the deposit liability and not accounted for to the plaintiffs. The undisputed testimony established that the plaintiffs have never filed a claim with the superintendent of banks and have not, in any other respect, brought themselves within the exclusive provisions of the 1931 statute governing the liquidation of insolvent banks and the proof and allowance or rejection of claims against such banks and the bringing of suit on such claims. In our opinion, these provisions are controlling, even though it appeared that the money claimed by the plaintiffs is held in trust for them by the state superintendent of banks. For the purpose of this decision, we may assume that that is the case.

The statute in effect at the time the Junction City bank was taken over by the state superintendent of banks was section 29, chapter 278, page 468, Oregon Laws 1931, amending section 22-2009, Oregon Code 1930, and read in part as follows:

"The superintendent of banks shall cause notice to be given by advertisement, in such newspaper as he may direct, weekly for three consecutive months, calling on all persons who may have claims against such bank or trust company to present the same to the superintendent of banks and to make legal proof thereof at a designated place and within 90 days from the first day of publication. The superintendent of banks shall mail a similar notice to all persons whose names appear as creditors upon the books of the bank or trust company. All claims of any kind or nature must be filed with the superintendent of banks, and if a claimant asserts a preference, he shall file in addition to his said verified claim a verified petition for preference which must state the grounds for preference. Any such petition for preference or prior lien on any of the assets of such bank or trust company over the claims of other depositors or creditors must be filed with the superintendent of banks and the circuit court for the judicial district in which the office of such bank or trust company was located before the expiration of the time fixed in the notice to creditors, and if not so filed shall be forever barred and shall not be approved or allowed as a preferred claim.

"If the superintendent of banks doubts the justice and validity of any claim or petition for preference, he may reject the same within a reasonable time thereafter and serve notice of such rejection upon the claimants, either by mail or personally, and an affidavit of the service of such notice, which shall be prima facie evidence thereof, shall be filed in his office.

"An action upon a legal claim so rejected must be brought in the circuit court for the judicial district in which the office of such bank or trust company was located within three months after such service and notice of intention to commence such action must be served 10 days prior to the commencement thereof upon the superintendant of banks.

"Any petitioner who is dissatisfied with the decision of the superintendant of banks in rejecting a petition for preference must, within 30 days thereafter, present said petition, together with the decision of the superintendant of banks, to such circuit court for review, whereupon such circuit court shall fix a date for the hearing of any such petition, giving reasonable notice thereof to the petitioner and to the superintendent of banks, and shall determine said matter upon the evidence produced by all concerned, and the burden of proof in such proceeding shall be upon the petitioner. An appeal from the decision of such circuit court to the supreme court may be taken by either party as from any other judgment or decree of such circuit court.

"The summary procedure of filing of claims and petitions for preference, and of the determination thereof by the superintendent of banks, and of the commencement of actions thereof, and of review on petitions for preference by the said circuit court, and of appeals therefrom to the supreme court, shall be exclusive of all other legal or equitable remedies, either by action or suit, which previously hereto prevailed under the common law."

The Legislature has thus provided the remedies which may be pursued by persons having claims against an insolvent bank which has passed into the hands of the state superintendent of banks, and has, in terms, made those remedies exclusive, evidently for the purpose of furthering the expeditious...