State ex rel. Spillman v. Commercial State Bank of Omaha, No. 31537.

• Court: Supreme Court of Nebraska
• Writing for the Court: CHAPPELL
• Citation: 143 Neb. 490,10 N.W.2d 268
• Decision Date: 11 June 1943
• Docket Number: No. 31537.
• Parties: STATE ex rel. SPILLMAN, Atty. Gen., v. COMMERCIAL STATE BANK OF OMAHA. HOTZ v. LUIKART et al.

143 Neb. 490
10 N.W.2d 268

STATE ex rel. SPILLMAN, Atty. Gen.,
v.
COMMERCIAL STATE BANK OF OMAHA.
HOTZ
v.
LUIKART et al.

No. 31537.

Supreme Court of Nebraska.

June 11, 1943.

Appeal from District Court, Douglas County; Dineen, Judge.

Proceedings by the State, on the relation of O. S. Spillman, against the Commercial State Bank of Omaha, wherein William J. Hotz was intervener. From an order dismissing the petition of intervention, intervener appeals.

Affirmed.

[10 N.W.2d 269]

Syllabus by the Court.

1. A demurrer ore tenus is recognized by this court as permissible practice, and if the pleading to which it is addressed is totally defective it is error to admit any evidence under such pleading.

2. If the court makes an erroneous ruling and afterwards in the trial of the case, with more exhaustive investigation of the question, finds that his first ruling is wrong, the principle of res adjudicata does not apply and it may be corrected at a subsequent term.

3. An order of the court allowing or disallowing a claim and fixing its status in a bank receivership is a judgment and unless modified at the term at which it is rendered, or appealed from, becomes with the adjournment of the term a final adjudication of the claim and its status.

4. In a proceeding which seeks to modify or vacate a judgment on account of fraud, after two years from the rendition of the judgment, if the petition shows that the facts were discovered within the period of limitation and fails to show any good reason why the two years should be extended by a court of equity it is not error for the court on motion or demurrer to dismiss the action.

5. A stockholder is not entitled to set off any debt due him from the bank against his statutory liability as a stockholder upon insolvency of the bank and after decree of deficiency, as the superadded liability of stockholders is a trust fund for the benefit of creditors, to share pro rata without preference.

6. In the collection of this trust fund and its disposition thereafter the receiver represents the creditors and not the bank. The trust fund not being an asset of the bank the two claims do not arise in the same right and set off would result in a preference of one claimed creditor over others already judicially determined for whom the trust fund was lawfully created.

Hotz & Hotz and William F. Dalton, all of Omaha, and C. J. Campbell, of Lincoln, for appellant.

F. C. Radke, of Lincoln, and Young & Williams, of Omaha, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL, Justice.

This is an appeal by intervener William J. Hotz from an order of the trial court dismissing both causes of action in his petition of intervention filed in these proceedings on May 25, 1940, praying for an

[10 N.W.2d 270]

injunction, accounting, judgment, decree of set-off and other equitable relief. The injunctive feature is to restrain the enforcement of a judgment against intervener for bank stockholders' liability (Luikart v. Heelan, 136 Neb. 492, 286 N.W. 780) until offset could be adjudicated on his two causes of action. After the filing of the petition of intervention, motions and demurrers filed by defendants were overruled, and they answered. At the beginning of the trial on the merits, at another term, and after opening statements of counsel had been made, defendants orally in open court renewed their demurrers, demurred ore tenus, and moved for dismissal of the petition. No application was made by intervener to amend. The trial court thereafter sustained defendants' motions and demurrers, and dismissed the petition. Intervener appeals to this court.

At the outset intervener contends that demurrer ore tenus and motion to dismiss were not available to defendants under the circumstances. This contention is without merit. We said in Dickinson v. Lawson, 125 Neb. 646, 251 N.W. 656, 657: “A demurrer ore tenus is recognized by this court as permissible practice, and if the pleading to which it is addressed is totally defective, it is error to admit any evidence under such pleading.” See, also, Curtis & Co. v. Cutler, 7 Neb. 315; Ball v. LaClair, 17 Neb. 39, 22 N.W. 118.

Questions relating to the sufficiency of a petition should be determined before a cause comes on for trial by the court. If the court makes an erroneous ruling and afterwards in the trial of the case, with more exhaustive investigation of the question, finds that his first ruling is wrong, the principle of res adjudicata does not apply and it may be corrected at a subsequent term. Perry v. Baker, 61 Neb. 841, 86 N.W. 692;Tiernan v. Miller & Leith, 69 Neb. 764, 96 N.W. 661;Follmer v. State, 94 Neb. 217, 142 N.W. 908, Ann.Cas.1914D, 151.

The intervener's first cause of action is res adjudicata and barred by the statute, section 20-2008, Comp.St.1929. In this connection, the petition discloses that the Commercial State Bank of Omaha, Nebraska, was placed in receivership on December 1, 1926. Prior to the time that the bank was placed in the hands of the guaranty fund commission and in receivership, intervener was attorney for the bank. On February 17, 1927, he filed a claim in these receivership proceedings in the sum of $3,553.31 for attorney's fees and money expended as such...