State v. Security Sav. & Trust Co.

• Decision Date: 13 January 1896
• Citation: 28 Or. 410,43 P. 162
• Parties: STATE v. SECURITY SAVINGS & TRUST CO.
• Court: Oregon Supreme Court

43 P. 162

28 Or. 410

STATE v. SECURITY SAVINGS & TRUST CO.

Supreme Court of Oregon

January 13, 1896

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Proceeding by the state of Oregon against the Security Savings & Trust Company by a bill of discovery to ascertain whether defendant had in its possession any funds which had escheated to the state. From an order overruling defendant's demurrer, and requiring it to answer the interrogatories, defendant appeals. Reversed.

Joseph Simon and S.B. Linthicum, for appellant.

C.M. Idleman, Atty. Gen., and John H. Hall, Dep. Dist Atty., for the State.

BEAN, C.J.

This is a proceeding brought by the district attorney of the Fourth judicial district, by direction of the governor to ascertain whether the defendant bank has in its possession, on deposit or otherwise, any funds or other property which has escheated to the state. The information after averring the official title of the informant, and that it is filed by direction of the governor, alleges, in substance: That the defendant is a private corporation organized and existing under the laws of this state, and is now, and has been for four years last past, engaged in a general banking business in the city of Portland. That during such time divers and sundry depositors in defendant's bank have, since the date of making their deposit, died intestate, without heirs, leaving sundry and divers amounts of money and personal property on deposit and in the custody of defendant, which has escheated to the state; the exact amount thereof, the names of the depositors, and date of deposit being to the informant unknown. That, in order to recover such escheated property for the use and benefit of the state, it is necessary for the informant to bring and maintain an action at law against the defendant, and in order to enable him to do so "it is necessary and proper for plaintiff to learn from defendant the name of the depositor, the amount and nature of the deposit, the date of deposit of such funds and other property as now are in the possession of the defendant, which have escheated to the state." That he intends and proposes, as directed by the governor, to commence an action at law pursuant to the provisions of chapter 25 of the Miscellaneous Laws of Oregon for the recovery of such escheated funds or other property "as may be found in the custody of said defendant bank," but that he is unable to do so without full discovery from said bank, wherefore he prays an order of the court directing and requiring the defendant, its officers and agents, to appear at a time certain, and answer under oath the information and the several interrogatories contained therein. The first, second, third, fourth, sixth, and seventh of such interrogatories require the defendant to state the names of all persons depositing or leaving money or other property with it whose deposits, whether evidenced by an open account, certificate of deposit, suspense account, or otherwise, have been dormant or uncalled for, or upon which no payments have been made, or against which checks have not been drawn, for a period of seven years, together with a description of the property or amount of money standing to the credit of each of such depositors. The fifth interrogatory requires the defendant to give the names of any and all depositors whom it knew or believed to have died prior to August 1, 1894, the date of the commencement of this proceeding, and against whose accounts no checks had been drawn or deposits made by any executor, administrator, or other representative, and the amount standing to the credit of each of such depositors. The eighth requires the defendant to give a list of any money or property held by it or in its possession at the time this proceeding was commenced which it thinks should escheat to the state. And the ninth requires the bank to give the name, date, and amount of deposit of any and all persons whom the defendant knew or believed had died intestate without heirs in this state, and the date of such death, as near as it might know or be informed. The defendant demurred to the information on the ground that it did not state facts sufficient to constitute a bill of discovery or to entitle the plaintiff to the relief demanded, which demurrer was overruled, and an order entered directing and requiring the defendant to file, on or before a certain date, fixed in the decree, an answer under oath to the information and interrogatories, and especially to answer each and every interrogatory contained in such information. From this order or decree the defendant appeals.

On this appeal two questions have been presented for consideration: First, whether the order overruling defendant's demurrer, and requiring it to answer the information and interrogatories as prayed for in the bill, is an appealable order; and, second, whether the information states facts sufficient to constitute a bill of discovery. The right of appeal is purely statutory, and, unless the order from which defendant's appeal is taken is a final order, judgment, or decree within the meaning of the statute the appeal, of course, cannot be entertained. The law, as we understand it, is that an order or decree is final for the purposes of an appeal when it determines the rights of the parties; and no further questions can arise before the court rendering it, except such as are necessary to be determined in carrying it into effect. Freem. Judgm. § 36; Elliott, App.Proc. § 90; St. Louis, I.M. & S.R. Co. v. Southern Exp. Co., 108 U.S. 24, 2 Sup.Ct. 6. Within this principle we think the present order or decree is final. The suit was brought for the sole and only purpose of obtaining from the defendant an answer under oath to the several interrogatories, and for no other relief. The information is a pure bill of discovery, in aid of a contemplated action at law, asking no relief; and the only litigated question in the case is the right of the informant to the discovery sought. When, therefore, the demurrer was overruled, and the court held that the plaintiff was entitled to the relief demanded, and ordered and directed the defendant to answer the interrogatories, it effectually determined all the issues in the case, and ended the controversy between the parties so far as it could do so, leaving nothing to be done but to enforce its determination as made. No subsequent question could arise in the case except as to the form or sufficiency of the defendant's answers, and therefore, in our opinion, it was a final order or decree within the meaning of the statute, and consequently appealable; otherwise the defendant would be without remedy by an appeal, though it should be admitted that the order complained of was in violation of its clear legal rights. If, as contended by the plaintiff, before it can appeal it must comply with the order of the court, and answer fully the information and interrogatories, an appeal would be a vain and useless proceeding, for the sole object of the suit would have been accomplished, and defendant's appeal could avail it nothing. In support of the demurrer it is contended that the information is insufficient as a bill of discovery, because it does not aver any facts showing a right of action in favor of the plaintiff and against the defendant in aid of which the discovery is sought, while the contention for plaintiff is that the section of the statute under which it was filed does not contemplate a common-law bill of discovery, but an inquisitorial proceeding to compel a bank or banking institution to disclose by answers to interrogatories propounded to it whether it holds or is in possession of any property which has or may escheat to the state, in order that the proper action may be brought in case escheated property is thus discovered. In a word, the effect of plaintiff's contention is that the statute is intended to enable the plaintiff to fish for a cause of action, and not to prove an existing case out of its opponent's mouth, or from documents in its possession, as is the object and purpose of the common-law bill of discovery. The statute in question provides that: "When the governor is informed or has reason to believe that any bank, banker, or banking institution in this state now has or holds on deposit or otherwise, any fund, funds, or other property of any kind or nature which has escheated to this state, he shall direct the district attorney in the district where such bank or banking institution is located to file in the circuit court an information or bill of discovery, with proper interrogatories to be answered by the owner, agent, or manager of such bank or banking institution, and upon the filing of such information or bill, the court shall order and direct, at a time to be designated in said bill, that said owner, agent, or manager of such bank or banking institution shall, under oath, file an answer to said information and interrogatories, and shall specially answer each and every interrogatory contained in such information or bill. If it appears to the court from such answer that said bank, banker, or banking institution has any property in its possession which has or may escheat to this state, it shall direct the said bank, banker, or banking institution forthwith...