State ex rel. Spillman v. Commercial State Bank of Omaha
| Decision Date | 11 June 1943 |
| Docket Number | 31537. |
| Parties | STATE ex rel. SPILLMAN, Atty. Gen., v. COMMERCIAL STATE BANK OF OMAHA. HOTZ v. LUIKART et al. |
| Court | Nebraska Supreme Court |
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.
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 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 attorney for the bank. The claim was rejected by the receiver and, upon default of intervener, was denied by the court on March 17, 1927, from which order no appeal was ever taken. Intervener asserts that at this time he believed, and the receiver and his agents misled him to believe, that he was not a stockholder in the bank and there would not be any liability imposed upon him as such, and as there were not many assets he did not press the claim.
However, on June 23, 1930, the receiver brought suit against intervener for bank stock liability which was established in the district court and affirmed by this court in Luikart v. Heelan, supra. When the final order was made against him establishing his stockholders' liability on May 25, 1940, it amounted to $844. Intervener further alleges that he has no remedy at law; that he will suffer irreparable damage unless the disallowance of the claim is vacated and thereafter established as a valid claim and offset permitted.
The law is that 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. State v. Platte Valley State Bank, 128 Neb. 562, 259 N.W. 643; Braver, Liquidation of Financial Institutions, 1229, sec. 1062.
The district court has power to vacate or modify its judgments or orders after the term at which they were made for the reasons set forth in section 20-2001, Comp.St.1929, or concurrently in equity. Subdivision 3 thereof has no application to the case at bar as contended by the intervener, for the reason that there is no irregularity in the obtaining of the judgment or order. The court is not authorized in its discretion to set aside a judgment or order after the term because of plaintiff's own mistake, inadvertence, or neglect. Kulhanek v. Kulhanek, 106 Neb. 595, 184 N.W. 139.
Section 20-2001, Comp.St.1929, provides in part: Section 20-2008, Comp.St.1929, provides in part: "Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions four *** of section 648 (20-2001) of this code must be commenced within two years after the judgment was rendered or order made ***."
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. Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298. See, also, State v. Lincoln Medical College, 86 Neb. 269, 125 N.W. 517; Hoeppner v. Bruckmann, 129 Neb....
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