Randall v. National Building, Loan & Protective Union of Minneapolis

• Decision Date: 19 February 1895
• Docket Number: 5736
• Citation: 62 N.W. 252,43 Neb. 876
• Parties: FANNIE M. RANDALL ET AL., APPELLEES, v. NATIONAL BUILDING, LOAN & PROTECTIVE UNION OF MINNEAPOLIS, APPELLANT
• Court: Nebraska Supreme Court

62 N.W. 252

43 Neb. 876

FANNIE M. RANDALL ET AL., APPELLEES, v. NATIONAL BUILDING, LOAN & PROTECTIVE UNION OF MINNEAPOLIS, APPELLANT

No. 5736

Supreme Court of Nebraska

February 19, 1895

MOTION for rehearing of case reported in 42 Neb. 809. Motion overruled.

Motion for a rehearing denied.

George D. Emery and W. A. Prince, for the motion.

POST J. HARRISON, J., not sitting.

OPINION

POST, J.

It is evident from the brief submitted by counsel for the appellant that they are not familiar with the methods of transacting business in this court. The fact that the opinion heretofore filed (42 Neb. 809) was not prepared by a member of the court must not be taken as an indication that the conclusion therein announced represents the views of the commissioners only. On the contrary, every question of law, and, so far as practicable, every issue of fact, is examined by all of the members of the court, both judges and commissioners; and, in accordance with our invariable rule, opinions, whether prepared by judges or commissioners, are submitted for examination and criticism by the entire membership of the court. This observation is suggested not alone by the courteous remarks of counsel for appellant, but also by the fact that our practice, which is conceded to be an innovation upon the rule in other jurisdictions, is apparently not understood by members of the profession in our sister states.

1. But to return to the case at bar, not only is the judgment heretofore announced that of the court, but is in accordance with our unanimous conclusion at the time its cause was argued and submitted.

2. A re-examination of the subject in the light of able briefs has tended to confirm the views stated on the former occasion. It may be conceded that the liability of a member of a building and loan association on his stock and on his loan, if he be a borrower, are entirely different, and that payments on the former are not necessarily credits on the latter. It does not follow, however, that a failure to pay interest or dues in accordance with his agreement or the by-laws of the association will, in every instance, per se, amount to a forfeiture of his stock so as to authorize a confiscation of the amount paid thereon. We adopt as sound the doctrine announced in the text of Thompson Building Associations, 97, viz.: "If the borrower is in default, having violated the rules, he has forfeited his right to any interest profit, but he has not thereby forfeited his stock, and he can apply that as a credit if he chooses." We are inclined also to agree with the view recently expressed by the supreme court of North Carolina in Rowland v. Old Dominion Building & Loan Association 18 S.E. 965, that an agreement whereby the stock of a member of a building association, held as collateral security for a loan made to the pledgor, is to be forfeited...