Hobson v. Security State Bank

• Citation: 57 P.2d 685,56 Idaho 601
• Decision Date: 29 April 1936
• Docket Number: 6330
• Parties: MRS. A. HOBSON, Appellant, v. SECURITY STATE BANK, a Corporation, and BEN DIEFENDORF, as Commissioner of Finance of the State of Idaho, Respondents
• Court: United States State Supreme Court of Idaho

57 P.2d 685

56 Idaho 601

MRS. A. HOBSON, Appellant, v. SECURITY STATE BANK, a Corporation, and BEN DIEFENDORF, as Commissioner of Finance of the State of Idaho, Respondents

No. 6330

Supreme Court of Idaho

April 29, 1936

BANKS AND BANKING - NOTICE TO CREDITORS OF INSOLVENT BANK - MAILING AND DELIVERY OF MAIL MATTER-PRESUMPTIONS-QUESTIONS FOR JURY-PRESENTATION OF CREDITOR'S CLAIM-RUNNING OF LIMITATION-BURDEN OF PROOF.

1. Where it is shown that letter has been properly addressed and deposited in postoffice, postage prepaid, presumption arises that it was delivered to addressee in due course of mail transportation.

2. Presumption arises that letter was not mailed, where addressee testifies that such letter was not delivered and that she did not receive it.

3. Burden was on bank to prove that depositor's action was barred by running of limitation against presentation and prosecution of her claim (I. C. A., secs. 7-224, 25-912 to 25-914).

4. Whether agents of Commissioner of Finance in charge of liquidation of bank mailed to depositor, addressed to her at her place of residence, a copy of notice to creditors of bank as required to defeat depositor's claim because not timely filed, held for jury (I. C. A., secs. 7-224, 25-912 to 25-914).

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Action for recovery of judgment allowing claim against insolvent bank. Judgment for defendants notwithstanding verdict. Reversed and cause remanded with directions.

Judgment reversed and cause remanded with directions. Costs awarded to appellant.

A. H Wilkie, for Appellant.

Due process of law does not mean anything that the legislature sees fit to declare to be such, for there are certain fundamental rights which our system of jurisprudence has always recognized, which the legislature cannot disregard in proceedings by which a person is deprived of life, liberty or property, and one of these is due notice and an opportunity to appear and be heard before final judgment in all judicial or quasi-judicial proceedings by which a person is deprived of property rights. It means in each particular case such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. (12 C. J. 1188; Bardwell v. Anderson, 44 Minn. 97, 46 N.W. 315, 20 Am. St. 547, 9 L. R. A. 152; Carr v Brown, 20 R. I. 215, 38 A. 9, 78 Am. St. 855, 38 L. R A. 294; Commonwealth v. Dollar Savings Bank, 259 Pa. 138, 102 A. 569, 1 A. L. R. 1048; Provident Inst. for Savings v. Malone, 221 U.S. 660, 31 S.Ct. 661, 55 L.Ed. 899, 34 L. R. A., N. S., 1129.)

So great is the probability that a letter properly addressed and mailed will reach the addressee that it is a presumption of law that a letter so mailed is received. In American Surety Co. of New York v. Blake et al., 54 Idaho 1, 27 P.2d 972, 91 A. L. R. 153, the defendant testified that he had mailed a letter to plaintiff and plaintiff testified that the letter had not been received, this court held that the question "as to whether or not the letter was written, properly addressed, mailed and received by the addressee was a proper question to be submitted to the jury." True, in that case it was a question as to whether or not the letter was received, while in the case at bar the question is only as to proper address and mailing. However, the principle and proof are the same, and as the proof of mailing raises the presumption of receipt, the failure to receive should raise a presumption that it was not mailed. At least that is a circumstance from which the trier of fact has a right to infer that it was not mailed.

Mary Smith and W. Lloyd Adams, for Respondents.

If the notices were prepared and mailed the presumption is that they were received. (Conklin v. Shaw, 67 Colo. 169, 185 P. 661.)

Parties asserting or denying evidence of facts have the burden of proving it.

The burden of proof rests upon the plaintiff. (Holt v. Yellow Cab Co. of San Diego, 124 Cal.App. 385, 12 P.2d 472.)

Under an order for service by publication of summons and mailing of such copies to the last known address of the defendant it was held that "the mailing of such copy was a sufficient compliance with the provisions of the statute." The court says that "anyway the record shows that a copy of the summons was mailed to the defendant and we think that is sufficient." (Harpold v. Doyle, 16 Idaho 671-694, 102 P. 158.)

"A mere general statement in an affidavit by the defendant that the summons and complaint were not personally served on him will not overcome the proof of service afforded by an affidavit of service in regular form." (Marin v. Potter, 15 N.D. 284, 107 N.W. 970; American Fruit Growers, Inc., v. Walmstad, 44 Idaho 786, 260 P. 168.)

AILSHIE, J. Givens, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

May 22, 1925, appellant, a resident of Tooele, Utah deposited $ 1,600 (as an interest bearing time deposit, at 5 per cent) in the Security State Bank of Ashton, Idaho. At the same time she also deposited for safekeeping in the bank the certificate of deposit (No. 4162) and other valuable papers and documents belonging to her. Of this amount of money $ 1,500 had been formerly deposited by appellant in 1920, also under a time certificate of deposit, while she was a resident of Fremont County in this state. At that time it was her custom to let the payment of interest go from one to three years before asking the bank for same. February 29, 1928, the bank was closed and taken over for liquidation by the Commissioner of Finance. May 1, 1930, appellant made a trip to Ashton for the purpose of withdrawing all or part of her deposit from the bank. At that time she received her first information of the closing of the bank. In order to protect her interests she filed a claim for money on deposit which was rejected by the Commissioner of Finance August 11, 1930.

Complaint was filed in the district court in November, 1930, alleging the deposit as above set forth and presentation of the claim and that the Commissioner of Finance failed to publish notice to creditors or mail notice to appellant, as provided by law in case of the closing of a bank. Trial was had before a jury in November, 1934, upon agreed statement of facts; no oral or other evidence was submitted. Motion for nonsuit was denied. A special verdict in the form of an interrogatory was submitted to the jury which they answered, signed and filed in favor of appellant. Counsel for respondent filed motion for judgment notwithstanding verdict, which was granted by the court. Judgment was thereupon entered that the special verdict be set aside, that plaintiff be not entitled to any relief and that defendants have judgment notwithstanding the verdict for costs.

Only one issue of fact is to be determined, viz., "Whether or not the agents of the Commissioner of Finance, in charge of the liquidation of the bank, mailed to the plaintiff, addressed to her at her place of residence, a copy of the notice to the creditors of the bank." The publishing and mailing of this notice is required by I. C. A., sec. 25-912 (1925 Sess. Laws, chap. 133, sec. 74). By the provisions of I. C. A., sec. 25-914 (1925 Sess. Laws, chap. 133, sec. 76), "All claims filed after the expiration of one year following the date fixed in the notice to creditors as the time for presentation of claims are not entitled to be allowed."

After overruling motion for nonsuit the court submitted to the jury the following interrogatory:

"Did the agents of the Commissioner of Finance, in charge of the liquidation of the Security State Bank of Ashton, mail or cause to be mailed, to the plaintiff a copy of the notice to creditors, addressed to the plaintiff at Tooele, Utah with postage prepaid thereon?"

to which the jury answered, "No." Counsel for defendant thereupon moved the court for judgment in favor of the defendant, notwithstanding the verdict, on the ground that "the facts were insufficient to sustain the verdict." The court granted the motion and thereupon judgment was entered in favor of the defendant and denying plaintiff any relief.

This appeal involves the single question as to whether or not the court erred in disregarding the verdict of the jury and entering judgment in favor of the defendant. The correct decision on this point involves a review of the evidence on the issue of mailing notice.

The statutes governing the giving of notice to depositors of a closed bank and the allowance or rejection of claims of depositors, in so far as they are involved in this case, are as follows:

Sec. 25-912, I. C. A.:

"The commissioner shall cause notice to be given by advertisement in a newspaper of general circulation in the town or city in which said bank is situated, if there be one, and if not, then in such other newspaper published in the state of Idaho, as the commissioner shall designate, once a week for two successive weeks, calling on all persons who have claims against said bank to present the same to the commissioner or his duly authorized agent at a place to be specified in said notice, and to make sworn proof thereof, in form to be fixed by him, within the time specified in said notice, not less than ninety days from the date of the first publication thereof. A copy of such notice shall be mailed to all persons whose names appear as creditors upon the books of the bank."

Sec. 25-913, I. C. A.:

"The commissioner shall reject or allow all claims in the whole or in part, and on each claim allowed shall designate the order of its priority. If a claim is...