State ex rel. Murray, for Use and Benefit of Sapulpa State Bank v. Pure Oil Co.
| Decision Date | 09 October 1934 |
| Docket Number | 24799. |
| Citation | 37 P.2d 608,169 Okla. 507,1934 OK 514 |
| Parties | STATE ex rel. MURRAY, Governor, et al., for Use and Benefit of SAPULPA STATE BANK et al., v. PURE OIL CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 20, 1934.
Syllabus by the Court.
1. A civil action may be commenced and maintained by one expressly authorized by statute, even though that person is not the real party in interest (section 144, O. S. 1931).
2. The state of Oklahoma is by statute made the proper party plaintiff in all suits necessary for the liquidation of assets of insolvent state banks (section 9173, O. S. 1931).
3. It is a general rule of law (subject to certain exceptions not involved in this case) that, when the legislative branch of government has declared that certain classes of cases shall be prosecuted in the name of the state by designated persons or officers, such cases must be maintained by a person or officer designated and cannot be maintained by any other person.
4. Where the Governor as relator brings an action in the name of the state, which action should have been brought in the name of the state by the bank commissioner, and where the bank commissioner appears after the action is commenced and seeks to prosecute such action in the name of the state, a proper occasion arises for a substitution of relators, and such substitution should be made.
Appeal from District Court, Creek County; John L. Norman, Judge.
Action by the State, on the relation of William H. Murray, Governor for the use and benefit of the Sapulpa State Bank and others against the Pure Oil Company and others, to recover assets of the insolvent bank, wherein W. J. Barnett, State Bank Commissioner, and others intervened. From a judgment dismissing the action, the relator and the interveners appeal.
Judgment of dismissal reversed, and cause remanded, with directions.
Glenn O. Young, of Sapulpa, for the State and others.
Alvin Richards, of Tulsa, for Pure Oil Co.
Poe Lundy & Morgan, of Tulsa, for Royalty Corporation of America.
J. C. Pinkerton, of Tulsa, for defendants in error.
This action was commenced in the district court of Creek county on the 28th day of May, 1932, by the state of Oklahoma on relation of William H. Murray, Governor, as plaintiff, for the use and benefit of the Sapulpa State Bank, an insolvent banking institution, and the depositors and other creditors thereof against Pure Oil Company, a corporation, Royalties Corporation of America, a corporation, John G. Ellinghausen, E. A. Ellinghausen, First National Bank of Tulsa, Oklahoma, Sapulpa State Bank, and H. L. Payne as defendants.
The petition of the plaintiff is lengthy, and sets forth many alleged facts upon which the asserted right to relief is based. A detailed analysis of the asserted facts is not essential to a determination of the questions presented in this appeal. It is sufficient to state the general nature of the action, which is a suit to recover from the defendants (except the Sapulpa State Bank) certain named and described securities and other assets or the value thereof, which securities are alleged to have been the property of the Sapulpa State Bank at the time it became insolvent in November, 1929. The securities and other assets are alleged to have been unlawfully and fraudulently procured from the Sapulpa State Bank by the defendant, after the insolvency of that institution, pursuant to an unlawful and fraudulent scheme and design entered into between the defendants. It appears from the petition that proceedings were had in the district court of Creek county whereby some of the transactions involved were approved by orders of that court. It is alleged that the approval by the court of these transactions was fraudulently procured and that the same are void by reason of defects appearing on the face of the records of the court proceedings approving them.
The securities and assets involved in this action are said to be worth approximately $154,000.
The right of William H. Murray, as Governor, to institute and maintain this action in the name of the state of Oklahoma was challenged in the trial court by demurrers filed in behalf of the defendants. The demurrers were sustained by the lower court, which held that this action could not be commenced and prosecuted by the Governor in the name of the state for the benefit of the Sapulpa State Bank, its depositors and other creditors.
The plaintiff elected to stand upon the petition, whereupon the action was dismissed, "without prejudice, however, to the right of the State of Oklahoma by its proper official to institute such new action as may be proper."
While the demurrers were pending in the lower court, a pleading styled "intervening petition" was, pursuant to leave of court, filed by the state of Oklahoma ex rel. W. J. Barnett, State Bank Commissioner, who was joined by certain named depositors and creditors of the Sapulpa State Bank. The "intervening petition" adopted the allegations and statements of plaintiff's petition and prayed for the same relief. The defendants attacked this "intervening petition" by motions on the theory that no action was pending and intervention could not be allowed in an action where the plaintiff had no legal right to sue; also that an intervention could not properly be allowed where intervener asserted the same right to recover as that claimed by the plaintiff. The motions were heard in connection with the demurrers to plaintiff's petition. These were sustained by the trial court and the intervening petition dismissed. This dismissal was, like the dismissal of plaintiffs' petition, without prejudice to the right of the state of Oklahoma by its proper officer to institute another action involving the same subject matter.
The case comes to this court on appeal by the plaintiff, state of Oklahoma ex rel. William H. Murray et al., and interveners in the trial court, who appear in this court as plaintiffs in error. We shall continue in this opinion to refer to the parties as they appeared in the trial court.
The principal question involved is apparent from the history of the case as above stated. It is: Does the Governor of Oklahoma have the authority to commence and maintain in the name of the state an action to recover the assets or value of the assets of an insolvent state bank for the use and benefit of such failed bank, its depositors and other creditors?
We have concluded that he is not. The state bank commissioner is the proper officer to institute such an action in the name of the state. The Governor is without authority to commence and maintain an action of this character unless possibly when a case arises where the bank commissioner upon request refuses to act. The intervening petition of the bank commissioner shows that he is not refusing to act.
Our decision on the principal question presents another question essential to a proper disposition of this appeal, namely, What order should the trial court have made after determining that the state bank commissioner and not the Governor of Oklahoma was the proper person to prosecute the action? Since the state bank commissioner was before the trial court asking to proceed in the name of the state of Oklahoma against the defendants to obtain the same relief as that sought by the Governor in the name of the state for the same purposes, the trial court should have disregarded the form of pleading submitted by him and ordered a substitution of his name for that of the Governor and should have permitted the action to proceed in the name of the state as though originally instituted by the state bank commissioner.
In arriving at the conclusion above stated, we have attached due importance to the various statutory and constitutional provisions applicable to the situation, and have correlated them in accordance with their relation to the questions presented.
It is important that we recognize the precise nature of the principal question involved and differentiate it from other questions with which it may be confused.
The precise question involved is, what officer or officers have the power to involve the state of Oklahoma in this litigation as a party plaintiff, and not whether the state of Oklahoma is a proper party plaintiff. To put the question in other language, it is: When an action is commenced, or attempted to be commenced, by the state of Oklahoma as plaintiff to protect the interests of the depositors and creditors of an insolvent state bank, what officer is the proper relator?
As we understand the briefs herein filed, neither of the parties question that the state of Oklahoma is the proper party plaintiff. The provision of our statute is plain in that respect. Section 9173, O. S. 1931, provides in part: "The Bank Commissioner shall have power and authority to institute and prosecute all suits necessary for the liquidation of the assets of the insolvent corporations taken over by him and such suits shall be brought in the name of the State of Oklahoma, on the relation of the Bank Commissioner."
Since the state is the proper party plaintiff by virtue of the above statute, it may maintain the action, regardless of whether it is the real party in interest or merely a nominal plaintiff for the use and benefit of depositors and creditors. An action may be maintained by one expressly authorized by statute, even though that person is not in fact the real party in interest. Section 144, O. S. 1931.
By reason of the statutory provision authorizing the state to institute this action, section 9173, O. S. 1931, those decisions, some of which are cited in the briefs, dealing with the power of the state to institute an action in the absence of express statutory authority,...
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