Schenk v. Dunten
| Decision Date | 31 March 1936 |
| Docket Number | 15,121 |
| Citation | 200 N.E. 744,102 Ind.App. 33 |
| Parties | SCHENK v. DUNTEN, RECEIVER |
| Court | Indiana Appellate Court |
BANKS AND BANKING---Insolvency and Dissolution---Claims---Preference---Special Deposits.---Where depositor instructed bank to buy certain bonds for amount of her deposit and the bank agreed to do so, giving a written receipt to the effect that designated savings books were held for that purpose and the funds not subject to withdrawal, and the bank continued, until closed because of insolvency, to represent that the bonds were ordered but not yet delivered the depositor was held entitled to a preferred claim against all general assets.
From La Grange Circuit Court; Clyde C. Carlin, Judge.
Action by Rebecca Schenk against Frank J. Dunten, as receiver of the La Grange County Trust Company, on a preferred claim. From a judgment allowing preference in part only, claimant appealed.
Reversed.
Rex S Emerick, for appellant.
Luke H Wrigley, for appellee.
On March 28, 1931, appellant Rebecca Schenk deposited $ 6,892.00 in La Grange County Trust Company. Shortly after that date appellant instructed the trust company to purchase Federal Land Bank Bonds for her, with the money, and the trust company agreed to do so. Frequently after that appellant called at the trust company to get her bonds but the representatives of the trust company on each occasion caused appellant to believe that the bonds had been ordered, that they would arrive soon, but had not arrived. On August 5, 1931, the secretary of the trust company sent the following written instrument to appellant, to-wit:
On August 8, 1931, the trust company suspended business, and was taken over by the State Banking Department. On November 20, 1931, appellee was appointed receiver of the trust company. Appellant never received the bonds.
Appellant filed a claim against the receivership estate, alleging the above facts, and showing some credits against the claim. Appellee filed an answer in general denial, and the cause was submitted to the court for trial. The court found for appellant and rendered judgment in her favor in the sum of $ 5,555.36, that said judgment should be a preferred lien as against $ 2,370.94 (which was the total amount of cash which came into the receiver's hands), and that the balance of said judgment should be a general claim as against the other general assets of the trust company in the hands of its receiver.
Appellant filed a motion for new trial which contained as ground therefor, alleged error in the assessment of the amount of recovery in that (a) the amount is too small, (b) the court failed to declare the amount of recovery a preferred lien against all the assets of the trust company. The motion for new trial was overruled, and this appeal was perfected.
Appellant contends first, that the evidence conclusively shows that at the time the trust company suspended business its relation to appellant, with reference to said deposit, was that of a...
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