State v. Banking Corporation of Montana

• Citation: 257 P. 1020,80 Mont. 49
• Decision Date: 07 July 1927
• Docket Number: 6144.
• Parties: STATE ex rel. v. BANKING CORPORATION OF MONTANA. RANKIN, Atty. Gen., FAY v. GRAY.
• Court: United States State Supreme Court of Montana

257 P. 1020

80 Mont. 49

STATE ex rel. RANKIN, Atty. Gen., v. BANKING CORPORATION OF MONTANA.

FAY v. GRAY.

No. 6144.

Supreme Court of Montana

July 7, 1927

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Receivership proceedings by the State, on the relation of Wellington D Rankin, Attorney General, against the Banking Corporation of Montana, in which Claude C. Gray was appointed receiver. From an order entered therein, Catherine L. Fay, a creditor appeals. Reversed with directions.

William Scallon, of Helena, for appellant.

Stewart & Brown, of Helena, for respondent.

CALLAWAY C.J.

This is an appeal by Catherine L. Fay from an order entered by the district court made after the decision of this court in State ex rel. Rankin v. Banking Corp. of Montana, 77 Mont. 134, 251 P. 151. A sufficient statement of the case in general appears in the opinion in that case and need not be repeated here. In the opinion, after the statement of the case, the court considered four appeals, one of which was that of Catherine L. Fay. In the disposition of the Fay appeal this court decided that Mrs. Fay, who was a bondholder, was entitled to a preference right, the amount of her claim being $3,210. In the order appealed from, which was dated December 14, 1926, the trial court quoted from our opinion the following language:

"The funds of the bondholders became a trust fund in the hands of the Banking Corporation, and so far as such trust funds are traced to the possession of the receiver, they are impressed with such trust and the bondholders are entitled to a preference to that extent. In this case the amount of funds so traced is $1,891.67."

And:

"Mrs. Fay is entitled to a preference in the amount of cash in the bank when it closed pro rata with other preferred claimants of the same class."

The trial court then said that "those in the same class with Mrs. Fay (Class D) are the holders of bonds in what is known as the McCauley-Spencer bond issue and the Henry Hagen bond issue." The court figured up the total amount of claims in Class D, and apportioned to Mrs. Fay $306.08, which it determined to be her share in the fund. The fact is that by its order of June 26, 1925, which was the one before this court upon the first appeal, the court had disallowed all of the bondholders' claims. An order giving directions with respect to a receivership is appealable (section 9731, R. C. 1921), and the appeal must be made within 60 days after the order is made and entered in the minutes of the court filed with the clerk. Id. § 9732.

While the trial court referred to Class D in its order of December 14th, the only place where that classification appears is in the schedule of claims attached to receiver's petition No. 49. The order of June 26, 1925, does not set forth the names of the claimants or the amounts of their claims and does not refer to Class D.

It does not appear that any of the bondholders appealed except Catherine L. Fay. If none of them appealed within 60 days after the order of June 26th, the order of the district court became final as to them, and it was not within the power of this court to reinstate them as preferred creditors. The lower court, for its own convenience, we assume, had segregated the various claims in the hands of the receiver into different...