State v. Commercial State Bank
| Decision Date | 05 February 1890 |
| Citation | 44 N.W. 998,28 Neb. 677 |
| Parties | STATE v. COMMERCIAL STATE BANK ET AL. |
| Court | Nebraska Supreme Court |
1. The supreme court, in a proper case, has jurisdiction to appoint a receiver to take charge of and wind up the affairs of a banking corporation organized under the laws of this state.
2. The application for the appointment of a receiver, set out at length in the opinion, held sufficient.
3. The property and assets of a banking corporation organized under the laws of this state, after it has ceased to carry on a banking business, are a trust fund for the payment of its debts. The rights of the creditors to the corporate property, so far as it is necessary to meet their demands, are superior to those of the stockholders, or the assignee of an insolvent stockholder.Wm. Leese, Atty. Gen., and W. T. Scott, for plaintiff.
Sedgwick & Power, for defendants.
This is an original application, brought by the attorney general for the appointment of a receiver to take charge of and wind up the business of the defendant bank. The petition is as follows:
“The attorney general respectfully represents to the court: (1) That the defendant the Commercial State Bank is a corporation duly organized under and by virtue of the laws of this state. (2) That the defendant John F. McConaughy is the president of the defendant bank. (3) That the defendant George W. Shreck is the sheriff of York county. (4) That the following named persons are creditors of said bank, and have money deposited therein in the sums set opposite their respective names:
+-------------------------------+
¦N. M. Furguson ¦$2,000 00¦
+---------------------+---------¦
¦T. J. Maguire ¦650 00 ¦
+---------------------+---------¦
¦J. H. Bell ¦110 00 ¦
+---------------------+---------¦
¦E. J. Petty ¦377 35 ¦
+---------------------+---------¦
¦Fairman & Harrington ¦300 00 ¦
+---------------------+---------¦
¦Mable Fairman ¦100 00 ¦
+---------------------+---------¦
¦Grace Fairman ¦50 00 ¦
+---------------------+---------¦
¦E. E. Watts ¦235 00 ¦
+---------------------+---------¦
¦Daniel Dovenbarger ¦300 00 ¦
+---------------------+---------¦
¦W. C. Conkle ¦394 13 ¦
+---------------------+---------¦
¦W. S. Jeffrey ¦300 00 ¦
+-------------------------------+
That the following named persons have sums of money deposited in said bank, which in the aggregate amount to $2,583.58, to-wit: John W. Atkinson; Ancient Order of United Workman; A. R. Bennett; R. L. Baugh; G. W. Beanblossom; E. B. Fox; S. M. French; Grebe Bros.; T. B. Kohn; S. A. Myers; R. E. McConaughy & Co.; George F. Holmes; Scott & Stoddard; W. R. Vandevere; J. A. Green & Co.; G. M. Snyer; L. W. Troutman; John Bingham; S. J. Laird; William Bartlett; Thomas Barber; J. A. Vandyke; John Bittinger; C. A. Pyle; W. C. Harris; J. M. Stoddard. (5) That the defendant McConaughy, on the 25th day of November, 1889, being, as he alleges, insolvent, made an assignment for the benefit of his creditors, and the defendant Shreck, as the sheriff of York county, has taken possession of all the estate of the defendant McConaughy; and by direction of the officers of the defendant bank, who claim that the defendant McConaughy is the sole owner thereof, the sheriff has closed the doors of said bank, taken possession of all its assets, and claims to hold the same by virtue of his office as assignee of said alleged insolvent. (6) That at all times, since the commencement of business by defendant bank, it has been conducted as a corporation; its articles of incorporation having been duly filed in the office of the county clerk of York county, and a copy thereof in the office of secretary of state. (7) That it has been made to appear to the auditor of public accounts and the attorney general that the manner in which the defendant is conducting its business is unsafe and unauthorized, and is jeopardizing the interest of its depositors, and that it is unsafe and inexpedient for such corporation to continue to further transact business. Reference is hereby made to the affidavits hereto attached as Exhibits G and H, and the report of said bank made November 8, 1889, marked ‘Exhibit A.’ (8) That the defendant McConaughy is indebted in much larger amounts than he can pay in full, and has been insolvent for a long period of time, but the assets of said bank are not large enough, together with the individual assets of the defendant McConaughy, to pay more than 50 per cent. of the liabilities of the defendant bank and the defendant McConaughy; and the interests of depositors will be without protection, unless this court appoint a receiver to wind up the business of the defendant bank. (9) That if the affairs of said bank are properly managed, and its business wound up in accordance with the law under which it has been conducting a banking business, its depositors and all of its creditors may be paid in full, as its assets are in excess of its liabilities. (10) That all of the persons whose names are mentioned in the body of this petition as depositors in said bank have made demand upon the officers of said bank for the payment of the amounts severally due them, and payment thereof has been by them refused; that the officers of said bank declare that no more payments will be made by the defendant bank, but that the sheriff, who now holds possession of its assets, intends to distribute the same among all of the creditors of the defendant McConaughy pro rata only; and the sheriff now holds possession of said assets, and will so administer said assets, unless he be ordered to turn the same over to a receiver to be appointed by this court. (11) That on Saturday, the 23d day of November last, the president of the defendant bank at the time when he was contemplating insolvency, and knowing that he was insolvent, received from S. J. Laird, one of the depositors above mentioned, a deposit of money amounting to the sum of $300, knowing that he (the...
To continue reading
Request your trial
-
State v. State Bank of Wahoo
...original jurisdiction of such action.” In support of exceptions to these conclusions counsel for the referee cite State v. Commercial State Bank, 28 Neb. 677, 44 N. W. 998;State v. Exchange Bank of Milligan, 34 Neb. 198, 51 N. W. 765; and State v. Commercial & Sav. Bank (Neb.) 55 N. W. 640 ......
-
State v. State Bank of Wahoo
... ... receiver of said State Bank of Wahoo, and that this court has ... not original jurisdiction of such action." ... In ... support of exceptions to these conclusions counsel for the ... referee cite State v. Commercial State Bank, 28 Neb ... 677, 44 N.W. 998, State v. Exchange Bank of ... Milligan, 34 Neb. 198, 51 N.W. 765, [40 Neb. 194] and ... State v. Commercial and Savings Bank of Kearney, 37 ... Neb. 174, 55 N.W. 640. The case last cited has no bearing ... upon the question of jurisdiction in a case ... ...
- State v. Commercial & Savings Bank of Kearney
-
Longfellow v. Barnard
...been challenged which in the least militates against our former holding herein. The case most nearly in point is State v. Commercial State Bank, 28 Neb. 677, 44 N. W. 998, but it is readily distinguishable from the one in hand. In that case the Commercial State Bank was an incorporated inst......