In re Badger State Bank

• Decision Date: 01 November 1932
• Docket Number: 6789.
• Citation: 245 N.W. 41,60 S.D. 484
• Parties: In re BADGER STATE BANK. v. WEISS et al. BADGER STATE BANK et al.
• Court: South Dakota Supreme Court

245 N.W. 41

60 S.D. 484

In re BADGER STATE BANK.

BADGER STATE BANK et al. v. WEISS et al.

No. 6789.

Supreme Court of South Dakota

November 1, 1932

Appeal from Circuit Court, Kingsbury County; Alva E. Taylor, Judge.

In the matter of the reorganization and liquidation of the Badger State Bank, of Badger.Petition by F. R. Smith, State Superintendent of Banks, in charge of the Badger State Bank of Badger, for the purpose of liquidation, opposed by Fred Weiss and Emma Weiss.From a purported judgment, petitioners appeal.

Affirmed.

T. B Thorson, Sp. Counsel, of Rapid City, and Max Royhl, of Huron for appellants.

Wm. H Warren, of De Smet, for respondentFred Weiss.

Hall & Eidem, of Brookings, for respondentEmma Weiss.

RUDOLPH J.

The brief and abstract of the appellant sets forth the following: This proceeding was commenced by the superintendent of banks filing in the circuit court of Kingsbury county a paper designated a "petition."In this verified "petition" the superintendent of banks set forth that the Badger State Bank of Badger, S. D., suspended business on the 29th day of March, 1928, and was taken in charge by the superintendent of banks for the purpose of liquidation; that, pursuant to the provisions of chapter 104 of the South Dakota Laws of 1925, deposit creditors of the said Badger State Bank representing more than eighty per cent. of the amount of the deposits of said bank, determined as of the date of suspension, joined in executing a writing for the reorganization of the said bank; that the superintendent of banks in his discretion allowed such reorganization.The request was that the court issue a show cause order addressed to the creditors of the Badger State Bank, requiring them to show cause why the said Badger State Bank should not immediately reopen as a solvent corporation, and why all depositors of such bank who had not signed the reorganization plan should not be bound and held by the terms thereof.The court did thereupon issue an order to show cause, and fixed a time for hearing, notice of which was given by publication of the said order in a paper within the county.Prior to the time of the hearing, the defendantEmma Weiss appeared and by affidavit set out facts which she alleged entitled her to a preferred claim against the assets of the Badger State Bank, and asked that the petition of the superintendent of banks for the reorganization be denied, unless he first pay to her, out of the assets of the said bank, the amount which she claimed she was entitled to as a preferred creditor.The affidavit of Emma Weiss was supported by other affidavits, to which the superintendent of banks replied by filing further affidavits.Thereafter the circuit court ordered the defendantFred Weiss to "interplead," and Fred Weiss did appear and file affidavits setting forth his claimed rights.Thereafter the court held a hearing, and heard testimony other than that submitted by affidavits, and finally entered what is denominated "findings of fact,""conclusions of law," and "judgment."By the purported judgment it was ordered that the Badger State Bank could reorganize as a solvent corporation under the terms and conditions of the agreement signed by the depositors.It was further ordered that the superintendent of banks pay to Emma Weiss the amount of money she claimed as a preferred claim against the assets of the said bank, and it was further ordered that the superintendent deliver to Fred Weiss a certain deed left with the said bank.The superintendent thereafter attempted to perfect an appeal from this purported judgment, and the matter is now before us for our determination.

We are of the opinion that the so-called and designated judgment is not a judgment at all within the meaning of title 2,Rev. Code 1919(section 2089 et seq.), relative to new trial and appeal in civil actions.

A judgment is defined by section 2484,Rev. Code 1919, as follows: "A judgment is the final determination of the rights of the parties in the action."However, every final determination by a court of a matter pending before it does not necessarily mean that such a determination is a judgment within the meaning of said title 2 of our Code.Section 2592,Rev. Code 1919, defines an order as follows "Every direction of a court or judge, made or entered in writing and not included in a judgment, is denominated an order."An order within the meaning of said section 2592 has its inception in a motion, section 2593,Rev. Code 1919, providing: "An application for an order is a motion."The definition of a judgment is the first section of part 6 of title 2 of our Code (section 2484), which is headed "Trial and Judgment."In the same part 6 of the Code there is found section 2560, which provides: "The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict or decision."This section, we believe, clearly indicates that an action, which results in a judgment (as distinguished from an order), is such an action as has for its basis pleadings which frame the issues, and, the issues being framed, the court acts only after a trial of these issues.A trial is defined by our Code in section...