In re Sec. Bank of Winner

• Decision Date: 29 March 1932
• Docket Number: No. 7391.,7391.
• Parties: In re SECURITY BANK OF WINNER.
• Court: South Dakota Supreme Court

59 S.D. 622

241 N.W. 743

In re SECURITY BANK OF WINNER.

No. 7391.

Supreme Court of South Dakota.

March 29, 1932.

Appeal from Circuit Court, Tripp County; J. R. Cash, Judge.

In the matter of the insolvency of the Security Bank of Winner. From an order confirming the sale of the insolvent's property to the Farmers' State Bank of Witten, the Bank of Winner appeals.

Affirmed.

Charles A. Davis, of Burke, for appellant.

Windsor Doherty, of Winner, for respondent.

CAMPBELL, P. J.

The insolvent Security Bank of Winner is being liquidated by the superintendent of banks under the supervision of the circuit court of Tripp county, S. D. In June, 1931, the superintendent of banks sought leave to sell certain real and personal property of the insolvent bank, which leave was granted. The property involved was the banking house of the insolvent bank (including the realty upon which it was located), together with the fixtures and contents thereof. Having obtained leave to sell, the superintendent gave notice in the manner and form required by law of the sale of such property, and that bids would be received to and including July 29, 1931. July 29, 1931, Farmers' State Bank of Witten filed with the superintendent of banks a sealed bid offering for the real and personal property advertised for sale the lump sum of $7,500, payable in certain installments at different dates as specified in the bid. On the same day the Bank of Winner submitted a sealed bid in the lump sum of $10,000 cash. Thereafter, and within ten days, the superintendent of banks accepted the bid of the Bank of Winner, made and filed a verified return of his proceedings, and asked confirmation of the sale. Within fifteen days after the filing of the report of sale, Farmers' State Bank of Witten filed exceptions thereto upon the ground that the Bank of Winner was not lawfully authorized to purchase and own the property because (upon information and belief) it was not buying the property for its own use and occupation as a banking house, and further alleging that the Farmers' State Bank of Witten was now offering the sum of $10,100 as a bid for said property, and was desirous of purchasing the same for the purpose of operating its own bank therein. Attached to the exceptions was a written bid in the sum of $10,100. Upon the filing of such exceptions, the circuit court fixed a time and place for hearing upon the return of sale and the exceptions, of which due notice was given. Both the Farmers' State Bank of Witten and the Bank of Winner appeared at the hearing date. Some oral testimony was taken, and at the conclusion of the testimony the Bank of Winner moved the court to confirm the sale to it at the same amount bid by the Farmers' State Bank of Witten, to wit, $10,100. Before any ruling on that motion was made, the Farmers' State Bank of Witten made an offer of $10,200. Thereupon the Bank of Winner withdrew its motion for confirmation of sale to it at $10,100, and moved that the original sale to the Bank of Winner at $10,000 be confirmed, which motion was denied and exception allowed. Thereupon the following colloquy between the court, Mr. Davis, attorney for the Bank of Winner, and Mr. Doherty, attorney for the Farmers State Bank of Witten, took place:

“The Court: Permission is given to the Bank of Winner to withdraw its bid of $10,100.00, in which they ask for confirmation, such bid being the same bid as put in by the Farmer's State Bank of Witten in their objections to the confirmation of the sale to the Bank of Winner.

“At the hearing held herein The Farmers State Bank of Witten in open court bid the sum of $10,200.00, the Court now asks and gives permission of the Bank of Winner to make any additional bid that they desire to make at this time in open court.

“Mr. Davis: The Bank of Winner at this time does not desire to make any further bid.

“The Court: The Court now offers to order a re-sale of this property, advertise as such for bids as provided by the statute.

“The Court now asks for an expression of the desires of the Bank of Winner and the Farmers State Bank of Witten, the two bidders in this matter, as to whether they desire the Court to order re-advertisement for bids for the sale of this property.

“Mr. Doherty: The Farmers State Bank of Witten does not object to a resale, but moves the Court that its increased bid of $10,200.00 be accepted by the Court and that an order confirming the sale and directing the conveyance to it be executed, in case the Court does not order a re-sale.

“Mr. Davis: To which motion the Bank of Winner objects for the reason that this sale was in the first instance legally made and fairly conducted and that the sum bid was not disproportionate to the value of the property sold, and that its motion to confirm said sale should be confirmed and granted by this Court. And there is no authority in law for the procedure outlined or taken by the Court in this matter. Objection overruled....