State, ex rel. Sorensen v. Commercial State Bank

• Decision Date: 23 March 1934
• Docket Number: 28899
• Citation: 253 N.W. 692,126 Neb. 482
• Parties: STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, v. COMMERCIAL STATE BANK, E. H. LUIKART, RECEIVER, APPELLANT: SCHOOL DISTRICT OF CITY OF CRAWFORD, INTERVENER, APPELLEE
• Court: Nebraska Supreme Court

253 N.W. 692

126 Neb. 482

STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, v. COMMERCIAL STATE BANK, E. H. LUIKART, RECEIVER, APPELLANT: SCHOOL DISTRICT OF CITY OF CRAWFORD, INTERVENER, APPELLEE

No. 28899

Supreme Court of Nebraska

March 23, 1934

APPEAL from the district court for Dawes county: EARL L. MEYER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The application for a new trial, by motion, because of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence have discovered and produced at the trial, is required by section 20-1143, Comp St. 1929, to be made at the term the verdict, report or decision was rendered.

2. After adjournment sine die of the term at which the judgment was rendered, the provisions of section 20-1145, Comp. St. 1929, are controlling as to statutory application for a new trial.

3. A motion for a new trial cannot be amended by assigning new grounds after the statutory time for filing such motion has expired, except upon a finding by the court that the party was unavoidably prevented from presenting the matter contained in the amendment.

4. Even the action of a majority of a school district board will not bind the district, without notice to or participation therein of the other members.

5. Estoppel not having been pleaded in the district court may not be urged on appeal as reason for reversal.

Appeal from District Court, Dawes County; Meyer, Judge.

Proceedings by the State, on the relation of C. A. Sorensen, Attorney General, against the Commercial State Bank of Crawford, wherein E. H. Luikart was appointed receiver of the defendant bank, and the School District of the City of Crawford intervened to establish a preferred claim. A judgment was rendered in favor of the intervener, the receiver's motion for a new trial was overruled, amendment of motion for new trial was also overruled, and the receiver appeals.

Judgment affirmed.

F. C. Radke, Barlow Nye and Crites & Crites, for appellant.

J. E. Porter, contra.

Heard before GOOD, EBERLY, DAY and PAINE, JJ., and LANDIS, District Judge.

OPINION

EBERLY, J.

The Commercial State Bank of Crawford, Nebraska, became insolvent, and a receiver therefor was appointed on November 20, 1931, in a proceeding had in the district court for Dawes county.

The school district of the city of Crawford intervened in this proceeding, and, upon trial, after issues were joined, was awarded a judgment for the sum of $ 3,262.27 as a trust fund, and the same was directed to be paid from the assets of the bank by the receiver in preference to claims classified as "general and valid preferred claims" of depositors. From the order of the district court overruling his motion for a new trial, seasonably made, and also from the overruling of an amendment to such motion for a new trial, the receiver appeals.

The judgment appealed from, amply sustained by the evidence then before the court, was rendered on the theory that this bank had not been approved as a depository by the governing body of such school district, as contemplated by the provisions of chapter 141, Laws 1931, and therefore the moneys so deposited constituted trust funds. This was in harmony with our previous decisions. See State v. Midland State Bank, 52 Neb. 1, 71 N.W. 1011; Lincoln Nat. Bank & Trust Co. v. School District, 124 Neb. 538, 247 N.W. 433; State v. Bank of Otoe, 125 Neb. 414, 250 N.W. 547.

After this date further discoveries of facts were made by the receiver, the result of which is that the controlling questions in this case are presented by a record which discloses the following: The judgment allowing the intervener's claim as a trust fund was made and entered on January 27, 1933, that being one of the days of the regular October, 1932, term of the district court for Dawes county. Intervener's motion for a new trial was thereafter seasonably filed. The regular October, 1932, term of this district court was adjourned sine die on March 6, 1933. On March 14, 1933, an amendment to the motion for a new trial was filed, which added to the same an additional paragraph, numbered 8, as follows: "Newly discovered evidence which is material to this action and consists of written matter in the form of a post card being addressed to the Commercial State Bank, Crawford, Nebraska, and on the opposite side thereof shows that the school district on July 17, 1931, designated the defendant bank as the depository of the funds of the intervener school district of the city of Crawford. Said card being attached to the deposition of Georgia Owen which is filed herewith."

This post card is in words and figures as follows:

"Commercial State Bank, Crawford, Nebr.

"Dear Sirs: You are hereby notified that the school board of School District No. 71 of Dawes county, Nebraska, has designated and approved your bank as the depository of the funds of the above said school district until notified otherwise. Mr. A F. Johnson of Crawford, Nebr. is the legally qualified treasurer of the school district. You will be advised in case of a change of treasurer. Yours respectfully, Georgia Owen Dir. or Sec., Crawford, Nebr. Dated ...