Siegel v. Archer

• Decision Date: 27 October 1937
• Docket Number: 26932.
• Citation: Siegel v. Archer, 212 Ind. 599, 10 N.E.2d 626 (Ind. 1937)
• Parties: SIEGEL v. ARCHER et al.
• Court: Indiana Supreme Court

10 N.E.2d 626

212 Ind. 599

SIEGEL v. ARCHER et al.

No. 26932.

Supreme Court of Indiana

October 27, 1937

John D. T. Bold, of Evansville, for appellant.

Phelps F. Darby, of Evansville, Philip Lutz, Jr., of Indianapolis Fred A. Wiecking, of Hartford City, and Alvin C. Johnson Asst. Atty. Gen., for appellees.

TREANOR Judge.

'On January 16, 1932, Walter D. Schreeder, a depositor in the American Trust & Savings Bank of Evansville, instituted an action against the stockholders of the bank to enforce their liability for assessment as such stockholders. The complaint alleged that the suit was brought for the benefit of the plaintiff (Walter Schreeder) individually and for the benefit of all other persons similarly situated. It further alleged that the bank was closed as an insolvent bank on October 17, 1931, by order of the State Bank Commissioner of Indiana, and that since that date it was being liquidated under the direction and supervision of said State Bank Commissioner. The complaint prayed a recovery of the amount equal to a 100 per cent assessment, and for the appointment of a receiver to collect said assessments and distribute the same 'as the court shall order and decree.'

'The State Bank Commissioner was made a party defendant. The defendants severally filed demurrers, answers in abatement, and answers in general denial. On February 18, 1934, the Department of Financial Institutions was substituted as a party defendant as successor to said State Bank Commissioner. On March 14, 1934, said Department of Financial Institutions filed a supplemental answer which alleged:

"* * * that since said cause was commenced and since the pleadings of the American Trust & Savings Bank were filed herein, said Department of Financial Institutions has taken possession of the business and property of said American Trust & Savings Bank of Evansville, Indiana, for the purpose of liquidating said bank under article 2 of chapter 40 of the Acts of the Indiana General Assembly of 1933. That on July 24, 1933, said Department took possession of the business and property of said bank pursuant to the provisions of said act and said Department ever since has been and now is in possession of the business and property of said bank for said purpose of liquidating said bank, and that on the 25th day of January, 1934, said Department of Financial Institutions officially determined that the cash value of the assets of said bank was not sufficient to pay the creditors of said bank in full, and that the individual liability imposed by law upon the shareholders of said bank should be enforced, and that on the 5th day of February, 1934, said department for the purpose of enforcing the individual liability imposed by law upon the shareholders of said bank, made demand in writing upon each and every shareholder of said bank for the payment of his legal liability as such stockholder of said bank, and mailed such demand to each of said shareholders at their last named address, setting forth in such demand the total amount required for the purpose of paying the creditors of said bank and the amount required for each of said shareholders to whom said demand was addressed, and fixing forty days after the giving of said notice as the day upon which the said shareholders should be required to pay their said several amounts to said Department.

"Said defendant further says that said Department is proceeding under the said Act of 1933 to enforce and collect the several liabilities of all shareholders of said bank as provided by law.'

'On April 13, 1934, Meyer Siegel filed a verified petition to intervene, which, omitting purely formal parts, is as follows:

"The undersigned petitioner respectfully shows the court that he is a depositor in the American Trust & Savings Bank of Evansville, Indiana, and that there is a balance due him on his deposit of Two Hundred and Fifty Dollars ($250.00) or more, and that said deposit or no part thereof has ever been sold, assigned or encumbered.

"That he is informed and verily believes that the plaintiff in this cause, purporting therein to act for himself and for and on behalf of all other depositors and creditors of said American Trust & Savings Bank, contemplates the dismissal of this action; that this petitioner, as a member of said class of depositors and creditors for the benefit of whom this action purports to have been brought, has never been consulted by the plaintiff nor the plaintiff's attorney; that your petitioner is informed and believes that the interest of himself as such depositor of the American Trust & Savings Bank and the interests of all other depositors and creditors of said bank for whom this suit has purportedly been brought, will be best served if said action is prosecuted to final judgment. That your petitioner should be named in this cause as a party plaintiff and be permitted to prosecute said action for and on behalf of the said depositors and creditors of the American Trust & Savings Bank, excepting the said Walter D. Schreeder.'

'On April 28, 1934, the court denied said petition, and on motion of plaintiff, Walter D. Schreeder, and over objection of appellant, Meyer Siegel, the court dismissed the cause and rendered judgment for costs against said plaintiff.

'Appellant prayed an appeal, which was granted, filed an appeal bond which was approved by the trial court, and filed a transcript in this court on October 2, 1934.' ^[1]

The errors assigned may be summarized as follows: (1) Error in denying appellant's petition to be named as a party plaintiff; and (2) error in dismissing said cause over appellant's objection.

It should be noted that appellant,...