Niewald v. Rosebud Bank, 18218.

• Decision Date: 28 January 1935
• Docket Number: No. 18218.,18218.
• Parties: NIEWALD v. ROSEBUD BANK et al.
• Court: Missouri Court of Appeals

78 S.W.2d 464

NIEWALD v. ROSEBUD BANK et al.

No. 18218.

Kansas City Court of Appeals. Missouri.

January 28, 1935.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Proceeding by Mrs. August Niewald against the Rosebud Bank, in the hands of O. H. Moberly, State Finance Commissioner, seeking the allowance of preferred claims, it being alleged that the special deputy commissioner had allowed the claims as common claims and certified them to the circuit court for adjudication as to priority of payment. From a judgment allowing the preference, the bank and commissioner appeal.

Reversed and remanded.

C. L. Shotwell, of Baldwin, for appellants.

Joseph T. Tate, of Owensville, for respondent.

TRIMBLE, Judge.

The action involved in this appeal is one wherein the plaintiff (now respondent) seeks to have her claims against the Rosebud Bank (now in liquidation and in the hands of the state finance commissioner), which claims were listed as common or general claims, declared by the circuit court to be preferred claims.

The petition is in two counts. The first involves five certificates of deposit, being, respectively, one for $900 dated January 6 1932, one for $500 dated June 13, 1932, one for $200 dated June 25, 1932, one for $400 dated September 9, 1932, and one for $1,000 dated October 3, 1932; all, except the third named one for $200, being due six months from date (said one for $200 was due twelve months after date), and all bearing 4 per cent. interest per annum from date until paid, and aggregating the sum of $3,000. These five certificates of deposit were given in place, and as renewals, of certificates of deposit given during the year 1931, of the same respective amounts, on the same dates in 1931, and bearing the same rate of interest.

In the second count, she asks to have declared as preferred the deposit of $200 made June 25th, the deposit of $400 made September 9th, and the deposit of $1,000 made October 3d, all in the year 1932, and aggregating $1,600.

In the first count, it was alleged that on each of the respective due dates of the certificates of deposits mentioned in said first count, she went to the bank and demanded payment thereof, but said bank through its cashier refused to pay same, although said bank, at each of those times, had sufficient assets and funds to pay the deposit demanded.

It was further alleged in said first count that on the 19th day of December, 1932, said bank was closed and all its affairs, business, and assets were placed in the hands of the commissioner of finance; that plaintiff had on deposit in said bank the sums in said count hereinabove set out totaling $3,000, together with interest thereon amounting to $69.72, all of which was due plaintiff and for which plaintiff had demanded payment from said bank and payment was refused by it prior to the date said bank was closed; that said $3,069.72 of plaintiff's money reached the hands of said commissioner of finance and he and said bank now have sufficient assets and money belonging to said bank out of which to pay plaintiff's claims; that she duly filed said claim with the special deputy commissioner in charge of the said bank's liquidation, and same has been allowed as a common claim and certified to the circuit court for adjudication as to priority of payment. Wherefore, in said counts, plaintiff prayed that the bank be adjudged a trustee ex maleficio of said $3,069.72 and said amount ordered paid as a preferred claim.

In the second count, plaintiff alleged the three deposits on the dates and of the amounts hereinabove set out, all of which were received and accepted by said bank under the promise and upon the condition that said bank would repay p...