In re Riverton State Bank, 1860

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: BLUME, Justice.
• Citation: 38 P.2d 603,47 Wyo. 469
• Parties: IN RE RIVERTON STATE BANK; v. WILDE, STATE EXAMINER MADDEN
• Decision Date: 11 December 1934
• Docket Number: 1860

38 P.2d 603

47 Wyo. 469

IN RE RIVERTON STATE BANK;

MADDEN
v.
WILDE, STATE EXAMINER

No. 1860

Supreme Court of Wyoming

December 11, 1934

APPEAL from the District Court, Fremont County, E. H. FOURT, Judge.

Suit by John Madden against A. E. Wilde, State Examiner, in charge of liquidation of the Riverton State Bank, an insolvent banking corporation. From the judgment, defendant appeals.

Affirmed.

For the appellant there was a brief by Ray E. Lee, Attorney General; O. O. Natwick, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne.

The controversy involves a claim of preference made by respondent to the State Examiner as liquidator of insolvent bank and is based on Section 10-532, R. S., enacted as Section 3 of Chapter 141 of the Laws of 1929. It is our contention that the Act of 1929 is unconstitutional and void. The statute differs from the Ohio statute referred to in Fulton v. Company, 125 O. S. R. 518. Section 10-532 deprives people of property without due process of law and denies equal protection of the laws. Article 14, Section 1, Constitution U. S. The statute differs in terms from those involved in Central Trust Company v. Bank, 153 S.E. 145; Central Trust Company v. Bank, 150 S.E. 137; Ex Parte Sanders, 167 S.E. 154; Witt v. Bank, 164 S.E. 306. In Nettles v. Bank, 153 S.E. 214, a similar statute was held to be violative of the due process clause of the Constitution. The judgment of the trial court is contrary to law. Foster v. Rincker, 4 Wyo. 484; State v. Foster, 5 Wyo. 199; Development Company v. Giinther, 32 Wyo. 294; Gray v. Elliott, 37 Wyo. 4; Vermont Company v. Bank, 37 Wyo. 216.

For the respondent, there was a brief by F. A. Michels, of Lander, and F. B. Sheldon, of Riverton. Both sides submitted cause without oral argument.

The findings and judgment of the trial court are supported by the evidence. Yellowstone Sheep Company v. Diamond Co., 43 Wyo. 15. The appellate court will not disturb a judgment where there is evidence upon which the finding may reasonably be based. Hunt v. City of Laramie, 181 P. 137. Saratoga Land Company v. Jensen, 20 Wyo. 323; Perka v. Rock Springs Commercial Company, 37 Wyo. 98. As between the immediate parties, the form of an indorsement is not conclusive, but the nature of the contract may be proved by parol evidence. U. S. National Bank of Omaha v. Geer, 73 N.W. 266. The case comes squarely within the provisions of Section 10-532 and Section 10-713, R. S. 1931. These statutes were enacted at the legislative session following the decision in Vermont Loan Company v. Bank, 37 Wyo. 216. The rule of proof requiring the tracing of funds in order to establish a trust has been changed by these statutes in order to meet a clear injustice.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION [38 P.2d 604]

[47 Wyo. 471] BLUME, Justice.

In this case the court rendered judgment declaring the claim of John Madden, hereinafter referred to as the claimant, to be a preferred claim against all of the assets of the Riverton State Bank, now in the process of liquidation. From this judgment the State Examiner has appealed. He allowed the claim as a general one, and contends that it should not have been allowed as a preferred claim.

The evidence shows: On July 25, 1932, claimant had in his possession a check, apparently on a Wisconsin bank, for the sum of $ 9668.10. On that day he, in company with Mrs. Burke, went to the Riverton bank and interviewed Mr. McGeown, the cashier of the [47 Wyo. 472] bank. The claimant wanted to use part of the money, and after the cashier had, by telegram, found out that the check was good, it was agreed that the claimant might use of the sum of $ 1668.10 immediately and check against it. The Wisconsin check was to be sent through the regular channels and collected and the cashier agreed to send the balance of the sum, namely, $ 8000, to claimant's sister in law in Wisconsin. The check was accordingly deposited. The deposit slip was written out by the cashier. It was for the sum of $ 9668.10, and contains the statement: "In receiving items for deposit or collection, the bank acts only as depositor's collecting agent." On the books of the bank, the claimant was given credit for the total amount of deposit, namely $ 9668.10. At the same time the cashier gave to claimant a blank check book. The latter drew checks against the deposit, six in all, in the total sum of $ 1660.93, leaving of the above sum of $ 1668.10 only the sum of $ 7.17. All the checks were issued and paid on July 25, 1932. On August 6 thereafter claimant sent a telegram from Milton Junction, Wisconsin, to the Riverton State Bank reading: "Please send balance my account care of Farmers Bank Milton Junction Wisconsin." On August 9, 1932, the Riverton Bank issued its cashier's check for $ 8007.15. This check was deposited in the Farmer's Bank a few days thereafter, sent through the mails for collection, but was not paid because the Riverton bank closed its doors on August 20,1932.

1. The Attorney General, on behalf of the State Bank Examiner, contends that there is no substantial evidence to support the finding that the claimant should have a preferred claim, for the reason that the evidence clearly indicates that when claimant deposited his Wisconsin check, the relation of creditor and debtor arose between him and the bank. What the relation herein was, both before as well as after the Wisconsin [47 Wyo. 473] check was collected, depends upon the intention of the parties. 3 R. C. L. 633; Hudson v. State, (Del.) 35 Del. 23, 156 A. 881, 80 A. L. R. 219; S.E. Hall Ind. v. Trust & Savings Bank, 177 La. 659, 148 So. 909; Brennan v. Holden, 4 F.Supp. 285, 288. The Attorney General has overlooked the deposit [38 P.2d 605] slip which states the relation to be that of principal and agent. And while such statement is not necessarily conclusive, it is material evidence of such intention. Brennen v. Holden, supra; King v. Bowling Green Trust Co., 145 A.D. 398, 129 N.Y.S. 977. That intention must, of course, be held to be modified herein to the extent of $ 1668.10. Claimant and Mrs. Burke both testified that the bank was to act only as collecting agent in so far as the sum of $ 8000 was concerned, and this amount, when collected, was to be sent to Wisconsin. The stubs of the check book given claimant show that he was to check against only the sum of $ 1668.10. The stub of the first check was filled out by the cashier, according to the testimony of Mrs. Burke, and by Mrs. Burke, according to the testimony of the claimant himself. This stub indicates that it was changed, and that claimant, instead of having a checking account of only $ 1668.10, had a checking account for the total amount of the Wisconsin check, namely the sum of $ 9668.10, thus indicating that the relation of debtor and creditor arose...