State ex rel. Davis v. Banking House of A. Castetter, No. 26261.

• Court: Supreme Court of Nebraska
• Writing for the Court: ROSE
• Citation: 116 Neb. 610,218 N.W. 584
• Parties: STATE EX REL. DAVIS, ATTY. GEN., v. BANKING HOUSE OF A. CASTETTER ET AL. (MEIER, INTERVENER). FOLDA v. CLARIDGE ET AL.
• Decision Date: 14 March 1928
• Docket Number: No. 26261.

116 Neb. 610
218 N.W. 584

STATE EX REL. DAVIS, ATTY. GEN.,
v.
BANKING HOUSE OF A. CASTETTER ET AL. (MEIER, INTERVENER).
FOLDA
v.
CLARIDGE ET AL.

No. 26261.

Supreme Court of Nebraska.

March 14, 1928.

[218 N.W. 584]

Syllabus by the Court.

The Constitution imposes upon a stockholder in an insolvent banking corporation a double liability to the extent of his stock, after the corporate property has been exhausted. Const. art. 12, §§ 4, 7.

The receiver of an insolvent banking corporation may invoke equity to prevent the payment of funds deposited by a stockholder until the latter's double liability is determined.

Before corporate assets have been exhausted, a stockholder in an insolvent banking corporation,

[218 N.W. 585]

over proper objections, cannot be required to submit for adjudication his double liability.

Prior to exhausting the assets of an insolvent banking corporation in the hands of a receiver, a stockholder may waive the immaturity of his double liability to creditors and submit that issue to a court of equity for determination.

In a receivership a proceeding by a stockholder in an insolvent banking corporation to require payment of a deposit in his favor as a preferred claim and an action by the receiver to enforce double liability of the depositor as a stockholder waiving immaturity of such liability may be consolidated by mutual agreement.

Litigable matters within the jurisdiction of the court and adjudicated are not open to relitigation in a subsequent action.

A third person's conditional or contingent interest in deposits by a stockholder in an insolvent bank does not necessarily prevent the receiver from setting off the claim for deposits against the liability of the depositor as a stockholder, where immaturity of such liability is waived.

Excerpt taken from a contract and inserted in the opinion held not an absolute or equitable assignment of deposits in an insolvent bank.

Appeal from District Court, Washington County; Leslie, Judge.

Proceeding by the State, on the relation of Clarence A. Davis, Attorney General, against the Banking House of A. Castetter and another, in which R. O. Brownell was appointed receiver, and in which William Meier, claimant, intervened, consolidated with an action by Emil Folda, receiver of the Banking House of A. Castetter, against Frederick H. Claridge and another, to enforce stockholders' liability. From a judgment dismissing his claim, the intervening claimant appeals. Affirmed.

L. R. Newkirk, of Omaha, for appellant.

C. M. Skiles, of Lincoln, and Gaines, Van Orsdel & Gaines, of Omaha, for receiver.

Smith, Schall, Howell & Sheehan, of Omaha, for defendants Claridge.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, and EBERLY, JJ., and REDICK, District Judges.

ROSE, J.

William Meier is an intervening petitioner in equity, seeking to establish his right to funds deposited by Helen M. Claridge in the Banking House of A. Castetter and to resort to the bank guaranty fund for payment of the deposits. The items comprising the depositor's claim are two certificates of deposit, one for $500 and the other for $4,500, and a balance of $426.87 on a checking account, or $5,426.87 in all. Meier pleads a right to these deposits under an equitable assignment or written contract transferring them to him, as he alleges, for the purpose of applying the proceeds on a mortgage partially securing a debt owing to him by the mortgagors, Helen M. Claridge and her husband Frederick H. Claridge.

In a proceeding by the state for a receivership to wind up the affairs of the Banking House of A. Castetter, hereinafter called the “bank,” an insolvent corporation formerly conducting a commercial banking business at Blair, the depositor, Helen M....