State ex rel. Spillman v. Security State Bank of Eddyville

• Decision Date: 28 November 1927
• Docket Number: 25085
• Citation: 216 N.W. 803,116 Neb. 223
• Parties: STATE, EX REL. O. S. SPILLMAN, ATTORNEY GENERAL, APPELLEE, v. SECURITY STATE BANK OF EDDYVILLE, DEFENDANT: OMAHA LIFE INSURANCE COMPANY, CLAIMANT, APPELLANT
• Court: Nebraska Supreme Court

216 N.W. 803

116 Neb. 223

STATE, EX REL. O. S. SPILLMAN, ATTORNEY GENERAL, APPELLEE, v. SECURITY STATE BANK OF EDDYVILLE, DEFENDANT:

OMAHA LIFE INSURANCE COMPANY, CLAIMANT, APPELLANT

No. 25085

Supreme Court of Nebraska

November 28, 1927

APPEAL from the district court for Dawson county: ISAAC J. NISLEY JUDGE. Affirmed.

AFFIRMED.

Gurley Fitch & West, for appellant.

C. M Skiles and J. L. Cleary, contra.

Heard before GOSS, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ., and REDICK, District Judge. GOOD, J., dissents.

OPINION

THOMPSON, J.

The record shows that the Security State Bank of Eddyville was a corporation organized for the purpose of and was doing a commercial banking business, as indicated by its name; that on its becoming insolvent a petition for the appointment of a receiver was duly lodged in the district court for Dawson county; that a receiver was appointed on or about September 17, 1923, and entered upon the discharge of his duty, and in the course of administering such trust the Omaha Life Insurance Company filed a claim in October, 1923, alleging that there was a balance due it of $ 413.01 on its general checking account. To the allowance of such claim, other than as a general claim against the trust, the receiver objected, for the reason, in substance, that such deposit was made and received under a collateral agreement which contravened section 39, ch. 191, Laws 1923, passed with an emergency clause and becoming effective April 7, 1923, which provides:

"No state bank shall receive any deposit upon any collateral agreement or condition other than an agreement for length of time to maturity and rate of interest, and no money deposited in any such bank, upon any such collateral agreement or condition, shall be guaranteed by the depositors' guaranty fund."

After such objection was filed, the insurance company lodged what it called an answer, but in effect, not including the denials therein contained, it was an amendment of its original claim, which amendatory part was as follows: "Alleges that said money was deposited by the Omaha Life Insurance Company in said bank in good faith and without any agreement of any kind between the said Omaha Life Insurance Company and the said bank other than the agreement that is always implied when a person deposits money in a bank in the general course of business. Wherefore, said Omaha Life Insurance Company prays that its claim may be allowed as a prior claim and as a claim entitled to payment from the guaranty fund of the state of Nebraska."

On the issues as thus presented, the case came on for hearing upon an agreed statement of facts, and the following judgment, in substance, was entered: That the claim of $ 413.01 be allowed as a general claim against the bank, but that it be disallowed as a claim entitled to priority and to payment out of the guaranty fund.

The claimant interposed a motion for a new trial, presenting as grounds therefor, in substance, that the judgment of the court is contrary to the evidence, and to the law applicable to a case of this nature. This motion was overruled, and claimant appeals, seeking reversal for the reasons substantially as indicated by the above motion.

Before considering the evidence in this case, and the question of the burden of proof, it might be well to state that, in this class of actions, "The receiver takes and holds the bank assets, as to liens, rights and liabilities, as they exist at the time the business is turned over to him, to be administered for the uses and benefits of the creditors and stockholders of the institution. * * * The receiver is at all times an officer of the court, subject to its orders and directions, an agent, the scope of whose authority is limited by law." State v. Farmers' & Merchants' Bank of Morrill, 114 Neb. 378 at 378-381, 207 N.W. 666. Thus, it will be seen that the receiver, as such, is without authority to impose a liability upon the guaranty fund.

Further, section 39, ch. 191, Laws 1923, involved in this case, was repealed, without a saving clause, by section 18, ch. 30, Laws 1925, which became effective April 1st of that year. However, such repeal did not affect the matters involved herein, as section 3097, Comp. St. 1922 (which section took effect February 21, 1873, after Bennet v. Hargus, 1 Neb. 419, was decided) provides: "Whenever a statute shall be repealed, such repeal shall in no manner affect pending actions founded thereon, nor causes of action not in suit that accrued prior to any such repeal, except as may be provided in such repealing statute." This section was construed by us in Lower v. State, 109 Neb. 590, 191 N.W. 674, wherein we gave it a literal interpretation. It follows that our holding in Globe Publishing Co. v. State Bank of Nebraska, 41 Neb. 175, 59 N.W. 683, filed June 6, 1894, in so far as the same conflicts with our conclusion herein, and with Lower v. State, supra, is overruled.

As heretofore denoted, the only evidence material to the questions here presented is that of an agreement as to facts, the material parts of which are as follows: That the claim of the insurance company represents a balance shown on the books of the bank as credited to it on a checking account, as of the date of the closing of the bank; that exhibit 1 is a record of the bank showing the deposits of such insurance company from February 27, 1922, to August 6, 1923, being a record of debits and credits; that letters, exhibits 2, 3, 4, and 5, passed between the bank and the insurance company, as they each indicate, and that each thereof refers to the account in question. This account, as it was at the time of the appointment of the receiver, was evidenced by exhibit 1, which reflects transactions indicated by the debits and credits covering nearly $ 2,000, and left remaining at the time of the closing of the bank, in appearance, the sum of $ 413.01.

Exhibit 2 purports to be a letter written by the insurance company to the bank, as follows: "February 25, 1922. Security State Bank, Eddyville, Neb. Friend O'Meara: Inclosed find our check for $ 1,000 which please place on open account. This is sent at the request of our Mr. Trumbo. He tells me he will call on you later and anticipates doing a nice business in connection with yourself. I appreciate this connection very much as you will probably recall I visited you in December. Yours very truly, E. M. Searle, Jr., President."

Exhibit 3 is a letter from the bank to the insurance company, as follows: "October 17th, 1922. Omaha Life Insurance Co., Omaha, Nebraska. Gentlemen: We are low on our reserve today and we were wondering if you could accommodate us with a deposit of say $ 2,000 for thirty or sixty days. The crops and live stock are not moving the way they should here on account of the shortage of cars. We can send you a time certificate or place it on open account at 5% interest. Yours very truly, Cashier."

Exhibit 4 purports to be in answer to exhibit 3, and is as follows "October 23d, 1922. Security State Bank, Eddyville, Nebraska. Friend O'Meara: I have your letter of the 17th, requesting a deposit of $ 2,000. The only way I could comply with this request would be to draw money from some other country bank; then I would have a deuce of a time explaining why I did so to the other fellow. We are making several farm loans which is using all of our money available at the present time. However, I am inclosing you our check for $...