Scotts Bluff County v. First Nat. Bank of Gering

• Decision Date: 01 March 1927
• Docket Number: 24979
• Citation: 212 N.W. 617,115 Neb. 273
• Parties: SCOTTS BLUFF COUNTY ET AL., APPELLEES, v. FIRST NATIONAL BANK OF GERING ET AL., APPELLANTS
• Court: Nebraska Supreme Court

212 N.W. 617

115 Neb. 273

SCOTTS BLUFF COUNTY ET AL., APPELLEES, v. FIRST NATIONAL BANK OF GERING ET AL., APPELLANTS

No. 24979

Supreme Court of Nebraska

March 1, 1927

APPEAL from the district court for Scotts Bluff county: P. J BARRON, JUDGE. Affirmed.

AFFIRMED.

Montgomery Hall, Young & Johnsen, for appellants.

Mothersead & York, contra.

Heard before GOSS, C. J., DEAN, DAY, GOOD, EBERLY and THOMPSON, JJ.

OPINION

GOSS, C. J.

This is an action by the county of Scotts Bluff and its county treasurer, Schmidt, to recover from the First National Bank of Gering and from Globe Indemnity Company, hereinafter called the company, the sum of $ 5,000 and accrued interest on a certain bond for that sum executed by those defendants to secure deposits of county funds. Trial to the court resulted in a judgment against defendants for the full amount and they appealed.

The bank had a paid-up capital of $ 25,000. To secure deposits it had given surety bonds, including that of the company, for a total sum of $ 57,500. On December 31, 1923, during all of which day the bank was apparently open for business, the bank received from the treasurer for deposit a check of one Barton, drawn on the bank and with funds to Barton's credit sufficient to pay it, for $ 1,274.48. This deposit was entered on the treasurer's pass-book but, without any knowledge or connivance on his part, the deposit was not actually credited to his account on the books of the bank; the check was placed in an envelope, marked "County Treasurer," where later, when appointed, the receiver found it. The bank was taken charge of by the authorities and failed to open on January 2, 1924, the next business day. The county deposits of record on the books of the bank were $ 55,892.66, without including the Barton check of $ 1,274.48. The total of these two items is $ 57,167.14; but contractual interest at 3 per cent. on the daily balances increased the total deposits to $ 57,500 or more, if the Barton check be considered as a deposit. The other surety companies paid the face of their bonds, or $ 52,500, and suit was brought against the company for the full amount of $ 5,000 on the theory that the county deposits totaled $ 57,500 or more when the bank closed.

The company argues, inasmuch as section 6193, Comp. St. 1922 prohibited the treasurer having on deposit with the bank a sum exceeding 50 per cent. of the $ 25,000 paid-up capital of the bank, that the company is liable with all the other bonding companies for only its pro rata share of $ 12,500. Questions akin to this have been before this court and a contrary principle has been followed. For examples: Notwithstanding section 6193, when a county treasurer deposits public funds in a state bank in excess of 50 per cent. of the paid-up capital stock of the bank it was held, in State v. People's State Bank, 111 Neb. 136, 198 N.W. 1018, that the entire deposit was within the protection of the depositors' guaranty fund. Where a contract by a state bank to borrow money in excess of the debt limit authorized by its charter has been performed by the lending of money to such state bank, it will not be allowed to avoid the payment of its notes. State v. Farmers' State Bank, 112 Neb. 597, 200 N.W. 173. And while the law prohibits a state bank from making loans in excess of a certain percentage of its paid-up capital stock and surplus, yet such loans are frequently made and their payment has always been enforced by this court when suit has been brought upon the notes. State v. People's State Bank, 111 Neb. 136, 198 N.W. 1018. We adopt the same principle here. The bank could not defend a suit by the county to enforce its claim to deposits on the ground that they exceeded the statutory...