Jones v. Bank of Leadville

• Decision Date: 25 November 1887
• Citation: 10 Colo. 464,17 P. 272
• Parties: JONES v. BANK OF LEADVILLE.
• Court: Colorado Supreme Court

17 P. 272

10 Colo. 464

JONES v. BANK OF LEADVILLE.

Supreme Court of Colorado

November 25, 1887

Commissioners' decision. Error to district court, Lake county.

On the 25th day of July, 1883, the defendant in error was, and had been, a bank doing a general banking business in the city of Leadville, and on that date presented to the Honorable L. M GODDARD, judge of the Fifth judicial district of Colorado its petition in the words and figures following:

'In the Matter of the Application of the Bank of Leadville to the Court to Dissolve its Corporate Existence, Close up the Business Thereof, and for the Appointment of a Receiver.

' To the Hon. L. M. Goddard, Judge of the District Court: The petition of the Bank of Leadville respectfully shows to the court that heretofore, and on, to-wit, the 21st day of August, 1878, the above-named petitioner became and was duly incorporated under the laws of the state, as a banking corporation; and thereupon, upon the filing of its said articles in the proper offices, entered upon the transaction of a general banking business. That since said time your petitioner has been largely engaged in said business, and to-day has upon its books, as due to depositors, upwards of the sum of two hundred thousand dollars. That said petitioner is also indebted to divers and sundry parties in large amounts, upon divers large and sundry accounts, in the sum of upwards of fifty thousand dollars; schedule of which several indebtednesses will be hereafter filed in court, and furnished to any receiver appointed herein. That in the transaction of such banking business heavy losses have been sustained by your said petitioner. That the nominal assets of the bank are very large, and are upwards of three hundred and fifty thousand dollars; but of said assets a large proportion, and a very considerable percentage, is of no present value, and quite a considerable percentage of no value whatever, if collection is to be forced. That a large percentage of the assets, and all the capital stock, of said bank, has been lost in the carrying on said banking operations, and that the losses have been so great that the said bank is no longer able to carry on its said banking business, and that the funds of said bank are so far exhausted that the business of the bank, under its incorporation, can no longer be carried on. That the said corporation is wholly and entirely insolvent. That your petitioner desires to wind up its said affairs, close its business, and secure the ratable and equitable distribution of its assets among its creditors; to retire from business, surrender its franchise, and be dissolved; and to that end seeks the appointment of a receiver. Wherefore your petitioner prays that by decree of this court, duly entered, the said corporation, the Bank of Leadville, may be dissolved; that its business and affairs may, under the direction of this court, be duly closed and wound up; and that to that end a receiver of its affairs may by the court be duly appointed; and for such other relief as to the court may seem meet. And your petitioner will ever pray.

'J. B. BISSELL, Attorney for Petitioner.'

--With was sworn by George R. Fisher at follows:

' State of Colorado, Lake County--ss.: I, George R. Fisher, being duly sworn, on oath days that I am the cashier and principal stockholder of the petitioner; that I have read said petition, and know its contents; and that the same is true of my own knowledge.

GEO. R. FISHER.'

On the same day the said judge made the following order:

'In the Matter of the Application of the Bank of Leadville for a Receiver, etc.

'Upon the reading and filing of the verified petition of said corporation, and upon the application of counsel for said corporation, it is ordered that George W. Trimble be, and he is hereby, appointed receiver of all the estate, effects, and property, both real and personal, of the said Bank of Leadville, of every shape, form, and description, and wheresoever situate, with full power and authority to sue for, collect, and receive any and all sum or sums due to the said bank, and to collect and reduce to cash all the estate and assets of said bank, and, in so far as the same may be sufficient, to pay off, liquidate, and discharge the obligations of said corporation. That said receiver is appointed upon his executing and filing with the clerk of the court a bond in the penalty of fifty thousand dollars, with two or more sureties each qualifying in such sum that the total shall be double the above amount; such sureties to be approved by the clerk according to the statutes, and according to the practice of this court.

' Done at Chambers at Leadville, July 25, 1883.

'L. M. GODDARD, Judge Fifth Judicial District.'

On the 3d day of November following, Jones, plaintiff in error, filed his complaint against the said bank, claiming $44,222.98 as due him from said bank; and on the 27th day of the same month caused summons to issue upon his complaint, which was served on the same day upon George R. Fisher, as cashier, secretary, and stockholder of said bank. On the same 27th day of November, Jones made and filed his affidavit in attachment, and on the same day filed his attachment bond in the penal sum of $90,000, executed by himself and 10 sureties, which is in the following form:

'Whereas, the above-named plaintiff has commenced, or is about to commence, an action in the district court of the Fifth judicial district of the state of Colorado, in and for the said county of Lake, against the above-named defendant, upon a contract for the direct payment of money, claiming that there is due to the said plaintiff from said defendant the sum of forty-four thousand two hundred and twenty-two and 98-100 dollars, lawful money of the United States, besides interest, and said plaintiff is about to apply for an attachment against the property of said defendant as security for the satisfaction of any judgment that may be recovered therein: Now, therefore, we the undersigned, residents of the state of Colorado, in consideration of the premises and of the issuing of said attachment, do jointly and severally undertake in the sum of ninety thousand dollars, and promise to the effect that, if the defendant recovers judgment in said action, or if the said court shall finally decide that the said plaintiff was not entitled to an attachment, the said plaintiff will pay all costs that may be awarded to the said defendant, the Bank of Leadville, and all damages, which it may sustain by reason of the wrongful suing out of the said attachment, not exceeding the sum of ninety thousand dollars.

' Dated this 26th day of November, 1883.

'C. A. JONES. [Seal.]

'F. N. PIERCE. [Seal.]

'C. F. DALY. [Seal.]

'N. P. SEELEY. [Seal.]

'I. W. CHATFIELD. [Seal.]

'L. R. TUCKER. [Seal.]

NELSON HALLACK. [Seal.]

CONRAD HANSON. [Seal.]

CHAS. B. WING. [Seal.]

ROBERT B. ESTEY. [Seal.]

GEO. H. TAYLOR. [Seal.]'

There seems to have been no justification by the sureties, or any of them, nor any indorsement on said bond expressive of the clerk's approval thereof. The writ of attachment was issued on November 27th, and was served the next day by delivering copies thereof to George R. Fisher, as cashier, on George W. Trimble, as receiver, and S. J. Warfield, as a stockholder. Under the writ of attachment, divers persons were garnished as debtors of the said bank, and certain property was levied upon as the property of the defendant. On the 28th day of November, George W. Trimble, as assignee and receiver of said bank, filed his motion to dissolve the attachment, and discharge the garnishees thereunder, and release the property levied upon, for the following reasons: 'Comes now George W. Trimble, assignee and receiver of the said defendant, and named and proceeded against by the plaintiff, as garnishee of said plaintiff, and as having in his possession property and assets belonging to said defendant, by Thomas & Lyles and J. B. Bissell, his attorneys, appearing specially for the purposes of this motion, and moves that he be discharged as garnishee, and as attachment debtor, and in all other respects and positions, and that all property levied on in his possession, or standing in his name, be relieved and discharged of such levy, and that the return of the sheriff as to such levy be wholly quashed, and held for naught; and for reason of said motion the following is alleged: First. The bond or undertaking, with the sureties thereon, has never been approved by the clerk of this court. Second. The sureties on said undertaking have never qualified as required by section 414 of the Code. Third. The said Trimble is, and since the 25th day of July, A. D. 1883, has been, the assignee of the Bank of Leadville aforesaid, and in charge of its property and effects, real and personal. Fourth. The said Trimble has since the 26th day of July, A. D. 1883, been the receiver of the said Bank of Leadville, and, as such, has been in possession, and has been and is entitled to the charge and custody, of the property, effects, and assets, real and personal, of the said Bank of Leadville. Fifth. The said property and effects, being so as aforesaid in the custody of the said Trimble, are not subject to levy by wirt of attachment or by execution. And, in support of the third and fourth reasons assigned as hereinbefore, the affidavit of the said Trimble herewith filed is referred to.

'By J. B. BISSELL.

'THOMAS & LYLES,

'Attorneys for G. W. Trimble, Specially Appearning.'

The motion was supported by the affidavit of said Trimble, which was in the words and figures following:

' Charles A. Jones, Plaintiff, vs. The Bank of Leadville, Defendant.

'George W. Trimble, first duly sworn on oath,...