Schenk v. Dunten
| Citation | 200 N.E. 744,102 Ind.App. 33 |
| Decision Date | 31 March 1936 |
| Docket Number | No. 15121.,15121. |
| Parties | SCHENK v. DUNTEN. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal 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, said receiver having been appointed in the cause of the State, on the relation of Luther F. Symons, State Bank Commissioner, plaintiff, against the La Grange County Trust Company, defendant. From an unsatisfactory judgment, plaintiff appeals.
Reversed, with directions.
Rex S. Emerick, of Kendallville, for appellant.
Luke H. Wrigley, of Albion, for appellee.
On March 28, 1931, appellant, Rebecca Schenk, deposited $6,892 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:
“LaGrange, Ind. Aug. 5, 1931.
“This is to certify that Mrs. Rebecca Schenk has placed with us funds to purchase $6000.00 par value 4 1/2% Federal Land Bank Bonds Savings book number 1622 and number 1623 to be retained as receipts for said bonds until delivery is made on bonds and said funds are not subject to withdrawal or transfer.
“When bonds are delivered said savings books are to be surrendered.
“By Rollo N. Walter, Secy.”
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 a 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 (1) 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 fiduciary; (2) that this case comes within the provisions of chapter 167 of the Acts 1931, p. 580, which provides that (section 1): “Upon the insolvency, suspension or liquidation of any bank of discount and deposit, or loan and trust and safe deposit company, while acting as executor, administrator, receiver, guardian, assignee, commissioner, agent, attorney-in-fact, or in any other fiduciary capacity, the person or persons beneficially entitled to receive the property and proceeds held in trust by it as aforesaid, or its successors in trust, shall have preference and priority over its general...
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