Mann v. Farmers Exchange Bk. of Gallatin, 16601.
Decision Date | 23 May 1932 |
Docket Number | No. 16601.,16601. |
Citation | 50 S.W.2d 146 |
Parties | BESSIE MANN, APPELLANT, v. FARMERS EXCHANGE BANK OF GALLATIN; S.L. CANTLEY, COMMISSIONER, ET AL., RESPONDENTS. |
Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Daviess County. — Hon. Ira D. Beals, Judge.
REVERSED AND REMANDED (with directions).
Dean H. Leopard for appellant.
Ed. C. Hyde and Earle W. Frost for respondents.
Plaintiff appeals from a judgment of the circuit court denying her claim as preferred, in an action against defendants, but allowing it as a common claim.
The suit was instituted in the circuit court of Daviess county, Missouri, on February 7, 1927, by petition which alleges the Farmers Exchange Bank of Gallatin, Missouri, was a corporation organized and existing under the laws of Missouri, and engaged in banking business; that on March 4, 1926, said bank, by its board of directors, was placed in the hands of C.E. French, Commissioner of Finance of Missouri, together with its property, business and affairs, for liquidation, and said finance commissioner took charge thereof; that afterwards said C.E. French resigned his said office of Commissioner of Finance and defendant S.L. Cantley was appointed his successor and, at the time of the filing of this suit, was acting as such commissioner and had charge of defendant bank, through Joseph M. Martin, special deputy.
The petition alleges that prior to March 4, 1926, the time defendant bank was taken in charge by the commissioner of finance and placed in the hands of special deputy, Joseph N. Martin, the plaintiff, Bessie Mann, deposited and left in said bank two United States Government bonds, for the sum of $1,000, of the second Liberty Loan issue, bearing interest at four and one-half per cent per annum, payable semiannually, which deposit and leaving of said bonds was at the special request of said bank, with its officers and agents in charge thereof; that said bank, by such officers and agents, promised and agreed to keep the same safely for plaintiff and to deliver them to her on her request; that, relying on said promise, plaintiff left them with said bank. That said bank and all its property, effects and affairs, on March 4, 1926, were taken in charge by the commissioner of finance and placed in the hands of such special deputy; that plaintiff has demanded of said bank and the officers in charge thereof, the return of her said bonds; that such officers have failed and refused to return said bonds or to account therefor; that plaintiff has good reason to believe and hence states that said bonds have been converted to the use and benefit of said bank, and by reason of gross carelessness and mismanagement of said bank, said bonds have been lost or stolen by said bank, or its officers in charge thereof; that said bank by its officers has wrongfully converted said bonds into money at the par value thereof, and has placed the proceeds of the sale of such bonds in the assets of said bank, so that, at the time the bank was placed in the hands of the commissioner of finance, as aforesaid, and had, in its assets so turned over to the commissioner, the proceeds of the sale of said bonds, and that the special deputy in charge now holds and has in his charge all of such money and proceeds received from such sale, together with other assets of said bank.
The petition further states:
The prayer asks that plaintiff be allowed her claim for payment of said bonds with accrued, unpaid interest, as a preferential claim.
The petition was filed on February 7, 1927. Thereafter, and on July 11, 1928, the court took up for consideration the report of the Commissioner of Finance in the matter of the liquidation of the Farmers Exchange Bank of Gallatin, and considered "all claims made for preference and for preferential payment," as shown by said report, "and all claims made by all parties who have filed claims for preference, and of all parties who have filed suits for preference, and for preferential payment, and all claims of all parties who have filed common claims, and all of said claims, suits and actions are now considered by the court, and are allowed, approved, disapproved or allowed conditionally, in detail, as set forth," in a general decree, and final judgment was rendered thereon. The final decree recites that evidence was heard on such claims, separately and severally; the decree approved the report of the special deputy from pages one to fourteen, inclusive, and as to the claim of Mrs. Bessie Mann, plaintiff herein, the decree recites:
Motions for a new trial and in arrest of judgment were overruled and plaintiff has appealed.
The record discloses the following occurred at the beginning of the trial:
It was admitted and agreed by counsel in open court, in part, as follows:
"... that the claim of Bessie Mann against said bank for preference in the sum of one thousand ($1,000) dollars, was duly filed within the time required by law, that sixty days has elapsed since the expiration of the time for filing claims against said bank and that said claim has not been approved and that the claim for preference was duly filed within the time required by law, and that sixty days has elapsed since the expiration of the time for filing claim for preference and that said claim for preference has not been approved."
Defendants' answer was a general denial. The first question for our consideration is defendant's demurrer to the petition. This question was not raised in defendants' original brief, but is presented and discussed in respondent's supplemental brief and argument, filed subsequent to the oral argument before this court. It is urged, in this connection, that the petition is insufficient and does not state a cause of action, in that it does not state and allege all of the necessary legal requirements in a suit against an insolvent bank and the commissioner of finance engaged in its liquidation. This position has special reference to section 5337, Revised Statutes 1929, which, in part, is as follows:
It is pointed out the petition herein contains only the general allegation that "the claim upon which this action is instituted was duly filed and that sixty days have elapsed since the expiration of time for filing said claim," that it does not allege when the claim should have been filed, but merely makes the allegation that the claim was "duly filed;" that, by...
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