In re Astoria Sav. Bank

• Decision Date: 31 May 1932
• Citation: 11 P.2d 1062,139 Or. 573
• Parties: In re ASTORIA SAV. BANK. v. SCHRAMM, State Superintendent of Banks. SVENSON
• Court: Oregon Supreme Court

11 P.2d 1062

139 Or. 573

In re ASTORIA SAV. BANK.

SVENSON v. SCHRAMM, State Superintendent of Banks.

Supreme Court of Oregon

May 31, 1932

In Banc.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Proceedings in the matter of the liquidation of the Astoria Savings Bank insolvent, in which C. H. Svenson petitioned for preference and distribution of assets, opposed by A. A. Schramm, State Superintendent of Banks. From a decree of the circuit court affirming a decision of the Superintendent of Banks denying the petition, the petitioner appeals.

Affirmed.

Elton Watkins and Wm. P. Lord, both of Portland (Johnston Wilson and Lord & Moulton, all of Portland, on the brief), for appellant.

Frank C. Hesse, of Astoria (Hesse & Franciscovich, of Astoria, on the brief), for respondent.

BELT J.

This is an appeal from a decree of the circuit court affirming the decision of the state superintendent of banks denying the petition of C. H. Svenson and others for preference in the distribution of the assets of the Astoria Savings Bank. Svenson, to whom numerous claims of depositors were assigned alleges in substance that on and prior to the 16th day of June, 1929, the Astoria Savings Bank held out to the public and represented to him and his assignors in particular that it operated and maintained a savings account department, and that such accounts were kept separate and distinct from its commercial accounts; that, in reliance upon such representations and upon the corporate name of the bank wherein the word "savings" was used, he was influenced to deposit therein the sum of $9,026.40 as a savings account; and that, in truth and in fact, the bank did not keep such funds separate, but commingled them with its commercial account funds.

Claimants ask that the court impress a trust as a prior lien upon all of the assets of the savings department, and that the superintendent of banks be estopped to assert that the bank was not maintaining and operating a savings account department. The defendant bank superintendent, as liquidating agent, held that the bank at the time of such deposits did not maintain a savings account department, and that such depositors must share in the distribution of the bank's assets upon the same footing as commercial depositors. There is no controversy as to the amount due petitioner and the other claimants. On the merits, the vital question is whether they are entitled to preference as savings account depositors.

Respondent superintendent of banks, contends that the circuit court had no authority to review his decision rejecting the claims of preference, for the reason that claimants did not comply with the statutory procedure in reference to claims against insolvent banks. The Astoria Savings Bank was taken over by the bank superintendent for liquidation on June 18, 1929. Within the time fixed in the published notices, viz. October 25, 1929, the preferred claims were filed with the superintendent of banks. On November 22, 1929, the superintendent allowed the general claims for the amount due on deposits, but denied any right of preference as savings account depositors. Nothing further was done by claimants until June, 1930, when the superintendent was served with a petition for preference. The sheriff's return of service, together with a copy of the petition, was filed in the circuit court on July 3, 1930. The superintendent, on July 7, 1930, again denied claimants any right of preference. The matter came on for hearing in the circuit court on the 27th of October, 1930, and, on the 16th of February, 1931, the court ordered and adjudged that the petition for preference be denied.

The questions of procedure presented involve a construction of sections 22-2009 and 22-2011, Oregon Code 1930. Section 22-2009 provides: "All claims of any kind or nature must be first filed with the superintendent of banks. 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 place and within a time not earlier than the last day of publication to be therein specified. 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. If the superintendent of banks doubts the justice and validity of any claim, he may reject the same 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 claim so rejected must be brought within three months after such service and notice thereof must be served upon the superintendent of banks. Any claim of preference or prior lien on any of the assets of such bank or trust company over the claims of other depositors or deposits must be filed with the superintendent of banks 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. ***"

Section 22-2010 relates to objections made by other parties to claims not rejected by the superintendent of banks. Section 22-2011 provides: "Any petition relating to an insolvent bank other than a petition by the superintendent of banks, must be filed with the court and the superintendent of banks. The superintendent of banks shall, within a reasonable time thereafter, grant or refuse such petition and notify the petitioner in writing. Any...