Peoples State Bank of Velva v. State Bank of Towner, 9335

• Decision Date: 03 October 1977
• Docket Number: No. 9335,9335
• Citation: 258 N.W.2d 144
• Parties: PEOPLES STATE BANK OF VELVA, Plaintiff/Appellee, v. STATE BANK OF TOWNER and the State Banking Board, Defendants/Appellants. Civ.
• Court: North Dakota Supreme Court

Page 144

258 N.W.2d 144

PEOPLES STATE BANK OF VELVA, Plaintiff/Appellee, v. STATE BANK OF TOWNER and the State Banking Board Defendants/Appellants.

Civ. No. 9335.

Supreme Court of North Dakota.

Oct. 3, 1977.

Frank F. Jestrab, Williston, Illona A. Jeffcoat-Sacco, Dept. of Banking & Financial Institutions, Bismarck, Sp. Asst. Atty. Gen., for defendant and appellant State Banking Board; argued by Frank F. Jestrab.

Donald R. Holloway and David O. Lee, Bismarck, for defendant and appellant State Bank of Towner; argued by David O. Lee.

Pringle & Herigstad, P.C., Minot, for plaintiff and appellee; argued by Thomas A. Wentz, Minot.

PAULSON, Judge.

This is an appeal by the defendants, the State Bank of Towner and the North Dakota State Banking Board (hereinafter the Bank of Towner and the Banking Board respectively), from a preliminary injunction issued by the District Court of McHenry County on March 18, 1977. Said injunction was granted to the plaintiff, Peoples State Bank of Velva (hereinafter Bank of Velva), temporarily enjoining the Bank of Towner from operating a paying and receiving station at Granville, North Dakota. The Bank of Towner and the Banking Board request this court to reverse the preliminary injunction issued by the district court.

On December 20, 1976, the Bank of Velva filed the statutorily required application for a paying and receiving station at Granville.

On January 17, 1977, the paying and receiving station at Granville, previously operated by the former Pioneer State Bank of Towner, commenced operation under the Bank of Towner. No application was filed by the Bank of Towner with the Banking Board for a permit for the establishment and maintenance of such station, as required by § 6-03-15 N.D.C.C.

The Bank of Velva commenced a lawsuit on February 26, 1977, in the District Court of McHenry County, requesting preliminary and permanent injunctive relief to prevent the continued operation of the paying and receiving station at Granville by the Bank of Towner.

On March 18, 1977, the district court granted the Bank of Velva a preliminary injunction, temporarily restraining the Bank of Towner from operating a paying and receiving station at Granville.

On March 21, 1977, the Bank of Towner and the Banking Board appealed from the preliminary injunction and also made a motion in the district court for a stay of the preliminary injunction pending appeal. On March 21, 1977, the district court denied the motion for a stay.

The Bank of Towner and the Banking Board then brought before this court a motion for a stay of the preliminary injunction pending appeal, pursuant to Rule 8(a) of the North Dakota Rules of Appellate Procedure. On April 26, 1977, this court denied the motion for a stay, in Peoples State Bank of Velva v. State Bank of Towner, 253 N.W.2d 174 (N.D.1977).

The Bank of Towner and the Banking Board have brought this appeal requesting a reversal of the order of the district court of McHenry County issued March 18, 1977. Said order provides, in relevant part:

"Defendant State Bank of Towner shall be, and hereby is, restrained from operating the paying and receiving station in the City of Granville, McHenry County, North Dakota, from and after the close of business on the 5th calendar day following service of this order on an officer of said Defendant and until the further order of this court or until the due issuance of a permit to operate such station by the defendant The State Banking Board after fair hearing pursuant to N.D.C.C. § 6-03-16, held on or after April 14, 1977.

"The Defendant State Banking Board of North Dakota be, and it hereby is, restrained from permitting the operation of said paying and receiving station at Granville, North Dakota, by Defendant State Bank of Towner during the pendency of this action and until further order of this court or until it shall have fully complied with the hearing provisions of N.D.C.C. § 6-03-16 at a hearing held on or after April 14, 1977."

On April 14, 1977, the Banking Board held a hearing on the application of the Bank of Velva to establish a paying and receiving station at Granville. Both the Bank of Velva and the Bank of Towner were represented at this hearing. On June 14, 1977, the Banking Board rendered its decision, which provides, in part:

"IT IS, THEREFORE, ORDERED, that the application of Peoples States Bank of Velva, Velva, North Dakota, to establish a paying and receiving station at Granville, North Dakota, be, and hereby is, in all things denied and that State Bank of Towner, Towner, North Dakota, be, and hereby is, granted permission to establish and maintain a paying and receiving station at Granville, North Dakota."

The preliminary injunction was dissolved, by its own terms, upon the Banking Board's issuance of a permit, in compliance with the hearing provisions of § 6-03-16, N.D.C.C.

It is well settled law that the courts cannot give advisory opinions and that an appeal will be dismissed if the issues therein become moot or academic, leaving no actual controversy to be determined. Wiederanders v. Wiederanders, 187 N.W.2d 74, 78 (N.D.1971); Wahpeton Public School District v. North Dakota Education Association, 166 N.W.2d 389, 393 (N.D.1969); State v. Gussner, 92 N.W.2d 65, 66 (N.D.1958); Hart v. Bye, 86 N.W.2d 635, 637 (N.D.1957); Brace v. Steele...