Morrill County v. Bliss

• Decision Date: 16 June 1933
• Docket Number: 28711
• Citation: 249 N.W. 98,125 Neb. 97
• Parties: MORRILL COUNTY, APPELLANT, v. CLARENCE G. BLISS ET AL., APPELLEES
• Court: Nebraska Supreme Court

249 N.W. 98

125 Neb. 97

MORRILL COUNTY, APPELLANT, v. CLARENCE G. BLISS ET AL., APPELLEES

No. 28711

Supreme Court of Nebraska

June 16, 1933

APPEAL from the district court for Morrill county: EDWARD F. CARTER JUDGE. Appeal dismissed.

APPEAL DISMISSED.

Syllabus by the Court.

1. Suit for accounting brought by depositor on behalf of himself and all depositors of insolvent state bank against receiver officers, and members of guaranty fund commission, and secretary of department of trade and commerce, is a proceeding in connection with insolvency, liquidation, or reorganization of bank, and, as such, district judge had jurisdiction at chambers to perform official acts with same effect as in open court. Comp. St. 1929, § 8-191.

2. Statute not repealed by implication unless repugnance is plain and unavoidable.

3. All statutes relating to same subject are considered as parts of homogeneous system and later statutes are considered as supplementary to preceding enactments on same subject.

4. Statutes relating to same subject, although enacted at different times, are in pari materia, and should be construed together.

5. Plaintiff who seeks vacation of judgment after term at which it was rendered must allege and prove that he has valid cause of action; and to entitle him to relief court must adjudge that such cause of action is prima facie valid.

6. Where trial court after term vacates a judgment against plaintiff and immediately reenters same judgment on the same record, there is no adjudication that plaintiff has a cause of action that is prima facie valid.

7. The legislature having power to limit the time within which an appeal must be taken, it is essential to the jurisdiction of this court that it be taken within that time limit.

8. Trial court has no inherent power, directly or indirectly, to extend time for taking appeal.

9. Where statutes provide that an appeal must be perfected by filing transcript in supreme court, which must contain certificate that cost bond has been given, trial court has no power to extend time indirectly by vacating decree after term and reentering the same judgment. Comp. St. 1929, §§ 20-1912, 20-1914.

10. Members of guaranty fund commission were public officers vested with quasi judicial functions, requiring judgment and discretion. Laws 1925, c. 30.

11. " Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption." 22 R.C.L. 485, § 163.

Appeal from District Court, Morrill County; Carter, Judge.

Suit by the County of Morrill against Clarence G. Bliss and others. From the decree, the plaintiff appeals and the defendants cross-appeal.

Appeal dismissed.

R. O. Canaday, William Ritchie and C. G. Perry, for appellant.

Montgomery, Hall & Young, Kennedy, Holland & De Lacy, I. D. Beynon, Perry, Van Pelt & Marti, Skiles & Skiles, Neighbors & Coulter, Butler & James, Gaines, McGilton & Gaines and Sloans, Keenan & Corbitt, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

DAY, J.

This is a suit for an accounting brought by Morrill county as a depositor of the Bridgeport bank, on its own behalf and on behalf of all other depositors similarly situated, against the members and agents of the guaranty fund commission of the state of Nebraska. The guaranty fund commission took possession of the assets and business of the Bridgeport bank on the 15th day of May, 1925, and ran it as a going concern until the 8th of September, 1927, during which period new deposits were solicited and accepted, new loans were made, the bank's paper was discounted, deposits were withdrawn, and all the functions of a bank were performed. It is alleged by the plaintiff that, while the bank was so operated, a large amount of deposits were withdrawn, creating an unlawful preference between depositors, the amount of which is unknown to plaintiff and only ascertainable by an accounting. The plaintiff further alleges that, during this period of operation by the guaranty fund commission, certain set-offs were permitted, and moneys, which were in fact loans and therefore general claims, were withdrawn, and that the bank was, in fact, unlawfully liquidated while unlawfully operated as a going concern.

The gist of the action pleaded by plaintiff is summarized in the petition as follows: "That by reason of the foregoing facts the assets of said bank placed in charge of the defendants who were members, officers and agents of the guaranty fund commission * * * have become exhausted and depleted in a sum in excess of $ 300,000, which sum, had said assets been properly conserved and legally administered, would have been available to the discharge of the indebtedness of said bank to this plaintiff and all other depositors and creditors similarly situated." The trial court found in favor of defendants and entered a decree in conformity to its finding, from which plaintiff appeals.

This is the second appeal filed in this case. The first appeal was taken from a decree entered February 9, 1932, and a motion for new trial, filed within three days, was overruled May 9, 1932. Defendants filed motion to dismiss this appeal for that no cost bond had been filed and no cash deposit to cover costs or supersedeas bond had been filed as required by section 20-1914, Comp. St. 1929. It appearing from the transcript that no cost bond had been filed within 90 days from the final order, as provided by statute, in conformity to the rule announced by this court in Greb v. Hansen, 123 Neb. 426, 243 N.W. 278, the former appeal was dismissed September 26, 1932, for lack of jurisdiction.

On August 29, 1932, during the May, 1932, term of court, the trial judge in Morrill county, not at the county seat but at Bayard, set aside the order of May 9, 1932, overruling motion for new trial, and the motion was again submitted to him and overruled. Later, on September 14, 1932, the court at Bridgeport, the county seat of Morrill county, again set aside the order of May 9, 1932, overruling the motion for new trial and, on reconsideration, the motion was again overruled. Thereafter, on September 26, 1932, the plaintiff's attorneys claim they learned for the first time that the decree of February 9, 1932, had been signed by the trial judge at chambers in Gering, Scotts Bluff county, and was sent to the clerk of the district court at Bridgeport, who entered it on the journal, showing that it had been signed by the judge at chambers at Gering, Nebraska. At that time plaintiff filed a motion that the decree of February 9, 1932, be held to be void and be set aside on the sole ground that the decree was signed by the trial judge at chambers in Gering, Nebraska, instead of in open court at Bridgeport, Nebraska, and that the motion for new trial be withdrawn and all orders relative thereto be expunged from the record. Upon October 8, 1932, a regular day of the May term, the court sustained the motion and reentered the same decree, and overruled plaintiff's motion for new trial, filed the same day. This appeal was taken from the decree and order overruling motion for new trial entered October 8, 1932.

The appellees, except Bliss, filed a motion in this court to dismiss this second appeal for that the transcript was not filed in this court within three months from the rendition of a final judgment; that it is an appeal from a judgment entered October 8, 1932, which decree is identical with one dated February 9, 1932, except the date, from which an appeal was dismissed; and that the reentry of the judgment on October 8, 1932, was for the sole purpose of extending the statutory time for perfecting an appeal to this court. This motion to dismiss the appeal was argued before this court and ruling thereon reserved until the case was submitted upon the merits. It demands our consideration first. As heretofore noted, the original decree in this case was signed by the trial judge at chambers at Gering, Scotts Bluff county, and transmitted to the clerk of the district court for Morrill county. Did this render the decree void?

The judges of the various district courts, as such, have no inherent authority at chambers except such as they are expressly given by law. The Constitution provides: "The several judges of the courts of record shall have such jurisdiction at chambers as may be provided by law." Const. art. V, sec. 23.

By section 27-317, Comp. St. 1929, the legislature has conferred certain powers upon district judges at chambers, which section however did not authorize the act of the trial judge in signing the decree in this case. However section 8-191, Comp. St. 1929, specifically provides that, in such a case as this, a judge of the district court at chambers shall have jurisdiction to perform certain judicial acts. This is a suit for an accounting brought by the plaintiff on behalf of himself and all depositors of the defunct Bridgeport bank to recover alleged losses of the bank while run by the guaranty fund commission. This money, if recovered, would have to be distributed among the depositors of said bank. The receiver is a party to this action. It involves the administration of this bank from the time when it was discovered to be insolvent, and, as such, it comes within the statute. Section 8-191, Comp. St. 1929, provides as follows: "In any proceeding in connection with the insolvency, liquidation or reorganization of a bank, a judge of the district...