Ruden v. Dalkin

• Decision Date: 19 December 1933
• Docket Number: 7378
• Citation: 251 N.W. 807,62 S.D. 66
• Parties: E.A. RUDEN, Superintendent of Banks, in charge of and in behalf of the First State Bank, a Corporation, Appellant, v. THEO. G. DALKIN, Respondent, and Dworsky & Dalkin, Intervener.
• Court: South Dakota Supreme Court

62 S.D. 66

251 N.W. 807

E.A. RUDEN, Superintendent of Banks, in charge of and in behalf of the First State Bank, a Corporation, Appellant,

v.

THEO. G. DALKIN, Respondent, and Dworsky & Dalkin, Intervener. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Ray E. Dougherty, Judge #7378—Affirmed John C. Mundt, Sioux Falls, SD Attorney for Appellant. Peck & Wall, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Dec 19, 1933

POLLEY, Judge.

It is alleged in plaintiff’s complaint that on the 3d day of August, 1925, defendant executed and delivered to the First State Bank of Sioux Falls his promissory note for $300, and that said sum of money has not been paid.

It is further alleged that on the 22d day of October, 1926, said bank suspended business and was turned over to plaintiff, who brings this action as superintendent of banks. Thereafter, Dworsky & Dalkin, Incorporated, procured an order in the circuit court permitting it to intervene in said action, and pursuant to said order filed its complaint in intervention. In this complaint it is alleged that said corporation is engaged in the mercantile business under the fictitious and trade-names of “The Army Store” and “The Lewis Company”; that the business of said corporation was carried on by the defendant Theo. G. Dalkin acting as agent and general manager of said corporation; that prior to and after the said 3d day of August, 1925, this intervener had on various occasions borrowed sums of money from said First State Bank through the defendant as its manager and agent as aforesaid, and had caused and permitted defendant to execute and deliver promissory notes signed by his own name to said bank as evidence of such indebtedness of this intervener, all with the understanding and agreement on the part of the said intervener, the said bank, and defendant at the time of the execution and delivery of said notes; that at the time of the suspension of business by the said bank intervener had on deposit in a checking account in said bank the sum of $4,790.33; that at the time of said suspension the intervener was indebted to said bank in the sum of $975 and no more, which indebtedness was evidenced by three promissory notes, one of which is the note sued on in this action; that the said deposit in the said bank was in the name of “The Lewis Company,” the fictitious and trade-name of this intervener as aforesaid; and that it was understood and agreed between the said bank and the defendant and this intervener at the time of the execution and delivery of the note referred to in plaintiff’s complaint that, when the said note became due or at any time prior thereto, the said bank might pay the said note by deducting the amount of money due thereon...