M.R. Harris' Estate v. West Grove Savings Bank

• Decision Date: 17 January 1928
• Docket Number: 38277
• Citation: 217 N.W. 477,207 Iowa 41
• Parties: M. R. HARRIS ESTATE, Appellee, v. WEST GROVE SAVINGS BANK et al., Appellees; L. A. ANDREW, State Superintendent of Banking, Intervener, Appellant
• Court: Iowa Supreme Court

217 N.W. 477

207 Iowa 41

M. R. HARRIS ESTATE, Appellee, v. WEST GROVE SAVINGS BANK et al., Appellees;

L. A. ANDREW, State Superintendent of Banking, Intervener, Appellant

No. 38277

Supreme Court of Iowa, Des Moines

January 17, 1928

REHEARING DENIED DECEMBER 14, 1928.

Appeal from Davis District Court.--W. M. WALKER, Judge.

The administrator of the M. R. Harris estate brought this suit against West Grove Savings Bank, J. L. Waybill (its cashier) Citizens Savings Bank of Ottumwa, Iowa, L. A. Andrew (its president), and K. C. Mowery (its cashier), for an accounting for notes executed by decedent, who was president of West Grove Savings Bank, alleging the notes to have been given for the accommodation of the bank. The petition was filed April 23, 1925. On July 16, 1925, the bank turned over its deposits (except a certificate for $ 9,500 held by Citizens Savings Bank of Ottumwa), and as collateral, the greater part of its bills receivable, to the Moulton State Savings Bank, and closed its doors. On December 4, 1925, plaintiff amended its petition by alleging that the bank had ceased to do business attempted to dissolve, and fraudulently transferred its assets. By this amendment plaintiff asked for the appointment of a receiver. On the same date, the case was dismissed, with prejudice as to the Citizens Savings Bank, L. A. Andrew, and K. C. Mowery. On December 16, 1925, L. A. Andrew, as superintendent of banking, filed a petition of intervention, neither asking for nor resisting the appointment of receiver of the West Grove Savings Bank, but alleging that he is sole and only receiver or liquidating officer for state incorporated banks, and that, should the court "find that the appointment of a receiver for the said West Grove Savings Bank should be made, then this intervener, as superintendent of banking, should be appointed the sole and only receiver for said bank," and, in the event of such finding, praying that he be appointed. On January 6, 1926, the court ordered that a receiver be appointed, denied intervener's claim to appointment, and continued the case for the purpose of determining the person to be named. Intervener thereupon sued out a writ of certiorari. Thereafter, the case was tried on the issues between plaintiff and West Grove Savings Bank, and decree rendered in favor of the plaintiff for $ 17,050.18. The decree reiterated the denial of intervener's petition for appointment of receiver and the court's determination to appoint some disinterested person, and continued the matter of determining the person, pending the result of the proceedings in certiorari. The only appeal taken is by intervener, and is from the denial of his application for appointment as receiver.

Affirmed.

John Fletcher, Attorney-general, Maxwell O'Brien, Assistant Attorney-general, Ben J. Gibson, and Jones & White, for appellant.

T. A. Goodson and George F. Heindel, for M. R. Harris Estate, appellee.

Roberts & Roberts and Taylor & Taylor, for West Grove Savings Bank, appellee.

MORLING, J. EVANS, DE GRAFF, ALBERT, and KINDIG, JJ., concur. WAGNER, J., not participating.

OPINION

MORLING, J.

Intervener was denied appointment as receiver of the West Grove Savings Bank because of his being interested adversely to the bank and its creditors. It is argued in the certiorari proceedings, and is argued here, that, under the present banking laws, only the superintendent of banking may be appointed receiver of any closed bank, and that the court has no jurisdiction to appoint anyone else, regardless of personal interest of the superintendent. In our view of the case, we have no occasion to discuss the question as applied to a bank which merely closes its doors without making any arrangement for the payment of depositors or the liquidation of its affairs. See generally Picklesimer v. Morris, 101 W.Va. 127 (132 S.E. 372), and cases there cited. See further on this point, and on the constitutional questions that might thereby be raised, Justice Albert's concurring opinion in Leach v. Exchange State Bank of Stuart, 200 Iowa 185, 199, 203 N.W. 31; Laird Bros. v. Dickerson, 40 Iowa 665, 670; Claussen v. Lafrenz, 4 Greene 224b; Cooper v. Armstrong, 3 G. Greene (Iowa) 120; State ex rel. White v. Barker, 116 Iowa 96, 108, 89 N.W. 204; Wine v. Jones, 183 Iowa 1166, 1176; State ex rel. Howell v. Wildes, 34 Nev. 94 (116 P. 595); State ex rel. Hovey v. Noble, 118 Ind. 350 (21 N.E. 244); Witter v. County Comrs. of Cook County, 256 Ill. 616 (100 N.E. 148); People ex rel. Vanderburg v. Brady, 275 Ill. 261 (114 N.E. 25); In re Appointment and Removal of Janitor of Supreme Court, 35 Wis. 410. See, also, State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204; Green v. Merchants' & Mech. Bank, 114 Ark. 212, 214 (169 S.W. 802).

The bank now before us arranged for payment of its depositors, closed its business as a bank, and took proceedings for dissolution. We shall, therefore, limit our discussion to the question whether Chapter 189, Acts of the Fortieth General Assembly, operates to deprive the district court of jurisdiction, under the facts of this particular case, to appoint as receiver a person other than the superintendent of banking, and whether the denial of the appointment to the intervener was within the authority and discretion of the trial court.

Section 1877, Code of 1897, provided:

"When it shall appear to the auditor of state [the superintendent of banking] that any savings or state bank has refused to pay its deposits in accordance with the terms on which such deposits were received, or has become insolvent, or that its capital has become impaired, or has violated the law, or is conducting its business in an unsafe manner, he shall, by an order addressed to such bank, direct a discontinuance of such illegal or unsafe practices, and require conformity with the law. * * * If any such bank shall fail or refuse to comply with the demands made by the auditor of state, or if the auditor of state shall become satisfied that any such bank is in an insolvent or unsafe condition, or that the interests of creditors require the closing of any such bank, he may authorize a bank examiner appointed by him to take possession of any such bank, whereupon the right of levy * * * shall be suspended, and the auditor of state may forthwith, with the assent of the attorney-general, apply to the district court or judge thereof for the appointment of a receiver for such bank, and its affairs shall be wound up under the direction of the court * * * "

By Chapter 189, Acts of the Fortieth General Assembly, the italicized portion of the section was stricken out, and in place of it was inserted the following:

"appoint an additional bank examiner to assist him in the duty of liquidation and distribution, whereupon the right of levy * * * shall be suspended, and the superintendent of banking may apply to the district court * * * or a judge thereof, for the appointment of said superintendent as receiver for such bank, and its affairs shall thereafter be under the direction of the court, and the assets thereof after the payment of the expenses of liquidation and distribution shall be ratably distributed among the creditors thereof, giving preference in payment to depositors. The attorney-general * * * shall represent the superintendent of banks in all proceedings provided for hereunder. No general assignment for the benefit of creditors shall be of any validity. The superintendent of banking henceforth shall be the sole and only receiver or liquidating officer for state incorporated banks and trust companies * * * "

The amendment is divided by the Code editor into sections (Code of 1924, Section 9238 et seq.), pursuant to Section 169 of said Code.

It was held in Leach v. Exchange State Bank of Stuart, 200 Iowa 185, 203 N.W. 31, that the statutes as so amended "constituted a separate and complete code of laws governing the organization, operation, and liquidation of state banks, and controlled the distribution of their assets, notwithstanding the general provisions of Section 3825-a," Code Supplement, 1913. In that case it was further held that the amendment "gives to the superintendent of banking, independently of the appointment of a receiver, the power to liquidate an insolvent bank and distribute its assets," without the assistance of the court, and without the necessity of being appointed by the court as receiver, but it was said:

"We would not be understood as saying that, where the superintendent of banking is not appointed receiver, his actions in the winding up of the affairs of a bank and distributing its assets are beyond the control of the court, or as expressing any doubt of the power of the court, in a proper case, to afford appropriate relief, as against the superintendent of banking, when, in that capacity only, he undertakes the liquidation of an insolvent bank * * * . Whether these provisions operate to take away the right, heretofore recognized, of an individual to ask for the appointment of a receiver for a banking corporation, we do not determine; but that they do deprive the court of the power to deny to the superintendent of banking the right expressly conferred upon him to act as receiver, if one is needed, and, in any event, to liquidate the bank and distribute its assets, is clear."

The question litigated and determined in that case was whether under the amendment, an independent school district was entitled to a preference under Section 3825-a, Code Supplement, 1913, for a debt due to it, or under the sovereign prerogative of the state. The bank involved in that case had not turned over its deposits and bills receivable to another bank, nor had that part of its affairs peculiar to the business of banking been largely closed out,...