State ex rel. Sorensen v. Farmers State Bank of Wood River

• Citation: 250 N.W. 557,125 Neb. 427
• Decision Date: 20 October 1933
• Docket Number: 28829
• Parties: STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, v. FARMERS STATE BANK OF WOOD RIVER, E. H. LUIKART, RECEIVER, APPELLANT: PRESTON HINKSON, INTERVENER, APPELLEE
• Court: Supreme Court of Nebraska

250 N.W. 557

125 Neb. 427

STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, v. FARMERS STATE BANK OF WOOD RIVER, E. H. LUIKART, RECEIVER, APPELLANT:

PRESTON HINKSON, INTERVENER, APPELLEE

No. 28829

Supreme Court of Nebraska

October 20, 1933

APPEAL from the district court for Hall county: RALPH R. HORTH JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Where an item was sent direct to a payor bank for payment and the liability thereon discharged by cancellation when there was cash in bank sufficient to pay said item, by the issuance of draft to transmit the fund, which was not paid because of failure of payor bank, the assets of failed bank shall be impressed with a trust in favor of owners of such item. Comp. St. 1929, § 62-1812.

Appeal from District Court, Hall County; Horth, Judge.

Suit by the State, on the relation of C. A. Sorensen, Attorney General, against the Farmers' State Bank of Wood River, wherein E. H. Luikart was appointed receiver for the defendant bank, and Preston Hinkson intervened and asserted a claim. From a judgment determining that intervener's claim should be payable in full as a preferred claim out of the assets in the possession of the receiver, the receiver appeals.

Affirmed.

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

Prince & Prince, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and SHEPHERD, District Judge.

OPINION

DAY, J.

This is an appeal from a judgment of the district court for Hall county, decreeing claim of intervener against an insolvent bank to be a preferred claim payable in full out of the assets in possession of the receiver.

Briefly summarized, the evidence, which was stipulated, reveals that the intervener purchased from the Farmers State Bank of Wood River a cashier's check for $ 3,000 which he indorsed and sent to a brother in Texas who in turn indorsed it and deposited it in a Texas bank which bank sent it to the issuing bank "for payment and immediate remittance." When the cashier's check was received by the Wood River bank, it was stamped paid and a draft was issued on the Continental National Bank in Lincoln, Nebraska, which was sent to the Texas bank. When this draft was presented for payment to the Lincoln bank, the Wood River bank had been closed by the department of trade and commerce, and the draft was not paid. At the time the draft was sent to the Wood River bank and by it stamped paid, there was sufficient cash in the vault and also on deposit in the Lincoln bank to pay it, which condition continued to the time when the Wood River bank was closed. The Texas bank assigned its claim to the intervener who is the real party in interest.

The trial court very properly concluded the provisions of section 62-1812, subd. b, Comp. St. 1929, were applicable and controlling: "When a drawee or payor bank has presented to it for payment an item or items drawn upon or payable by or at such bank and at the time has on deposit to the credit of the maker or drawer an amount equal to such item or items and such drawee or payor shall fail or close for business as above, after having charged such item or items to the account of the maker or drawer thereof, or otherwise discharged his liability thereon but without such item or items having been paid or settled for by the drawee or payor either in money or by an unconditional credit given on its books or on the books of any other bank, which has been requested or accepted so as to constitute such drawee or payor or other...