State, ex rel. Spillman v. Citizens State Bank of Ralston
| Decision Date | 07 May 1927 |
| Docket Number | 25767 |
| Citation | 214 N.W. 6,115 Neb. 593 |
| Parties | STATE, EX REL. O. S. SPILLMAN, ATTORNEY GENERAL, v. CITIZENS STATE BANK OF RALSTON: R. O. BROWNELL, RECEIVER, APPELLANT AND CROSS-APPELLEE: SOUTHERN SURETY COMPANY, CLAIMANT, APPELLEE AND CROSS-APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS. JUDGE. Affirmed.
AFFIRMED.
C. M Skiles and Jackson B. Chase, for appellant.
Dressler & Neely, contra.
The Southern Surety Company, hereinafter called claimant, filed certain claims against the receiver of the insolvent Citizens State Bank of Ralston, hereinafter referred to as the bank, and prayed their allowance as preferred and payable from the depositors' guaranty fund. Objections to their allowance as preferred claims were filed by the receiver, on the theory that the claims did not represent deposits and were not within the protection of the guaranty fund. The trial court found for the claimant in part and adjudged the sum of $ 4,449.40 to be a preferred claim and payable from the guaranty fund, and the remainder of the claim or claims was allowed only as a general claim. The receiver has appealed from that part of the judgment which allowed a part of the claim as preferred, and the claimant has filed a cross-appeal from the disallowance of the remainder of the claims as preferred.
The following pertinent facts appear from the record: One Noersgaard was a depositor in the bank while it was a going concern. He demanded and the bank refused payment of his deposit. Thereupon he brought suit against the bank, and a trial in the district court resulted in a finding that Noersgaard was a depositor, and awarding him a judgment in the sum of $ 3,567.23. At about the same time one Rasmussen brought suit against the bank in the nature of a tort action and recovered a judgment for $ 2,175.40. The bank, then a going concern, desired to appeal from both judgments to the supreme court and procured the claimant to furnish supersedeas bonds. As a condition to its furnishing the supersedeas bonds, claimant demanded indemnity from loss. Thereupon the bank issued to the claimant or its agents two cashier's checks, aggregating $ 6,000. The agents indorsed and deposited these cashier's checks in an Omaha bank in a special account, and immediately drew a check on the special account for $ 6,000, payable to the bank, and upon presenting this to the bank it issued to the claimant two certificates of deposit, one for $ 3,700 and the other for $ 2,300. These certificates drew 4 per cent. interest. At the expiration of a year they were renewed for the original amounts, plus interest. The two cases were appealed to the supreme court, where the judgments of the district court were affirmed and mandates issued to the district court. Thereupon execution was issued and returned unsatisfied. The bank at this time was in control of the guaranty fund commission. The claimant paid to Noersgaard and Rasmussen the amount of their respective judgments, with interest, and took an assignment thereof. In filing its claim, claimant set out all of these facts and prayed for allowance of the entire amount as preferred.
Claimant argues that the two certificates represent deposits, and that it is entitled to an allowance of the full amount thereof as a preferred claim, or, in lieu, to be allowed the amount of the judgments as preferred.
With reference to the two certificates of deposit, we think it is quite plain that claimant did not become a depositor by virtue of the issuance of these two certificates. It placed no money of its own in the bank. What it did was to take the bank's money and place it in another bank to its credit, and then check it back to the bank and receive therefor two certificates of deposit, of which the ones in controversy are renewals. We think the transaction is precisely the same as though the bank, in the first instance, had issued the certificates directly to claimant as an indemnity because of its liability as surety on the supersedeas bonds. The bank, not the claimant, furnished the money, and by a circuitous method the bank's credit was transferred to the claimant and by the claimant back to the bank.
In State v. Farmers State Bank, 112 Neb. 380, 199 N.W. 812, it was said: "In determining whether a transaction creates a 'deposit' within the protection of the guaranty fund, the law will look through all semblances and forms to ascertain the actual facts as to whether there has been a bona fide deposit, and, if not, the guaranty fund does not protect the transaction, no matter how it may be evidenced." Under the rule there announced, we think it clear that the certificates, nominally evidencing a deposit, do not represent such within the meaning of the guaranty fund law.
We next come to the question as to whether claimant, as the assignee of the judgments, is entitled to the protection of the guaranty fund. The judgment in favor of Rasmussen was not based on a deposit. At no time, so far as the record discloses, was he a depositor in the bank. He obtained a judgment in a tort action and, as such, was a mere judgment creditor. An ordinary judgment creditor of a state bank is not within the protection of the guaranty fund law. Since Rasmussen was not a depositor and was not protected by the guaranty fund, the assignment of his judgment would give to the claimant no greater right. It is clear that the district court properly denied claimant a preference, as assignee, of the Rasmussen judgment. This disposes of the questions presented by the cross-appeal.
There remains to be determined the question as to whether claimant as the assignee of the Noersgaard judgments, is entitled to the protection of the guaranty fund. That Noersgaard was a depositor is beyond question. As a depositor, he sued the bank while a going concern and obtained a judgment, which was a judicial determination that he was a depositor and determined the amount of the deposit. By the assignment of that judgment, claimant has obtained whatever rights Noersgaard had. If Noersgaard at the time of the assignment was entitled to have his claim preferred and adjudged payable from the guaranty fund, this claimant,...
To continue reading
Request your trial