Rogers v. National Surety Company
Decision Date | 10 November 1927 |
Docket Number | 26048 |
Parties | J. W. ROGERS, RECEIVER OF THE STATE BANK OF GERING, APPELLANT, v. NATIONAL SURETY COMPANY, APPELLEE |
Court | Nebraska Supreme Court |
APPEAL from the district court for Red Willow county: CHARLES E ELDRED, JUDGE. Affirmed.
AFFIRMED.
Butler & James and Edward J. Lambe, for appellant.
R. C Clarke, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
This is an appeal by J. W. Rogers, as receiver of the State Bank of Gering, plaintiff, from an adverse judgment in an action brought by such receiver against the National Surety Company of New York as defendant. The controlling facts involved in this litigation are as follows: The State Bank of Gering failed September 28, 1922. In due course of proceedings the plaintiff was appointed and qualified as receiver thereof. From January, 1919, to date of the failure, this bank had a capital of $ 25,000 and a surplus of $ 7,500. It had been designated as a depository of public funds by the proper corporate authorities of Scotts Bluff county, and at the time "it closed its doors" there was on deposit therein $ 49,505.06, and there was owing by it to the county of Scotts Bluff, as interest accrued, an additional sum of $ 2,414.49. It also appears that on or about January 8, 1921, this bank, as principal, and the National Surety Company of New York, as surety, had executed and delivered to the county of Scotts Bluff a bond in the sum of $ 10,000. Its conditions were:
This bond had been accepted and approved.
After the bank's failure the surety company, upon demand, paid the county treasurer of Scotts Bluff county the sum of $ 10,764.02, and received in consideration thereof from that officer an assignment in writing of the "sum of $ 10,764.02, with interest, on deposit in the State Bank of Gering, Gering, Nebraska, and thereby subrogated the said surety to all its rights and remedies against said bank."
On this assignment an action was commenced against the receiver of the failed bank, having for its purpose securing a judgment making said claim a charge against the assets of the bank and also against the depositors' guaranty fund. The right of recovery was put in issue by proper pleadings and a trial on the merits was had. After appeal to this court (State v. State Bank of Gering, 114 Neb. 213, 206 N.W. 758), the action was finally determined in favor of the surety company and adversely to the receiver and the depositors' guaranty fund. The final judgment rendered in said cause in favor of the surety company and against the guaranty fund was paid in full by the guaranty fund on or about April 21, 1926.
The present action was commenced June 1, 1926, as an original action by the receiver in behalf of the department of trade and commerce for the use and benefit of the depositors' guaranty fund of the state of Nebraska, and was based solely upon the proposition that the depositors' guaranty fund and the National Surety Company were, in view of the facts narrated, in truth and in fact, cosureties for the public funds deposited in the State Bank of Gering, and that the former having paid the entire sum, to wit, $ 51,919.55, to Scotts Bluff county was, as a cosurety, entitled to contribution from the latter.
The controlling questions presented by the pleadings upon which the case was tried and determined in the district court, and which are now urged by the plaintiff on appeal, are: (1) Is the defendant a cosurety and liable for a contribution to the depositors' guaranty fund? (2) Is the plaintiff foreclosed by the first adjudication and do the principles of res adjudicata apply? Of course, if the first question be determined against the plaintiff, it would serve no good purpose to determine the second.
It is to be observed that the questions presented by this appeal arise from, and have their inception in, the operation of our state banking law. Comp. St. 1922, pt. 3, title V, art. XVII, as amended. They pertain particularly to the provisions thereof creating and regulating the operation of the "depositors' guaranty fund." Comp. St. 1922, secs. 8024-8035.
This legislation was enacted pursuant to the police power of the state and is sustainable as, and because of, being a proper exercise of that police power. Noble State Bank v. Haskell, 219 U.S. 104, 55 L.Ed. 112, 31 S.Ct. 186; Shallenberger v. First State Bank, 219 U.S. 114, 55 L.Ed. 117, 31 S.Ct. 189.
To epitomize briefly, it may be said that section 8024 et seq., Comp. St. 1922, provides for the creation of a guaranty fund for the protection of depositors of a state bank; that when a state bank fails, the claims of depositors for lawful deposits, and the claims of holders of exchange, shall have priority over all other claims, except federal, state, county, and municipal taxes, and shall be a first lien on all of the assets of the failed banking corporation; and the further provision is made that, when a bank has become insolvent and a receiver therefor has been appointed, it appearing that the cash in the hands of the receiver shall be insufficient to pay the claims of such depositors, the same shall be paid in a manner pointed out from the depositors' guaranty fund. The rights and remedies created in favor of the depositors' guaranty fund and for its reimbursement by reason of this transaction are enumerated in section 8035, Comp. St. 1922, in the following language: "To the extent of the amount paid from said guaranty fund to satisfy the claims of creditors, the department of trade and commerce, for the use and benefit of said fund, shall be subrogated to all the right of the creditors thus paid, to participate in the assets of such bank, and the same shall be enforced and collected by the receiver accordingly and when collected shall be placed in said fund and deposited by the department of trade and commerce in the solvent banks subject to the provisions of the depositors' guaranty fund, proportionate to the several deposits to the assessments levied against each of said banks."
It will be noted that by the language of the above section quoted the right of subrogation in favor of the depositors' guaranty fund is expressly confined to "all the right of the creditors thus paid, to participate in the assets of such bank." This language is plain and unambiguous. State v. Insurance Co. of North America, 71 Neb. 320, 99 N.W. 36.
If we are to be limited for our remedies to the provisions of the statute, it could hardly be contended...
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Rogers v. Nat'l Sur. Co. of N.Y.
...116 Neb. 170216 N.W. 182ROGERSv.NATIONAL SURETY CO. OF NEW YORK.No. 26048.Supreme Court of Nebraska.Nov. 10, 1927 ... Syllabus by the ... , for the use and benefit of the depositors' guaranty fund, against the National Surety Company of New York. From a judgment for defendant, plaintiff appeals. Affirmed.[216 N.W. 182]Butler & ... ...