State v. Tunnicliffe

• Decision Date: 18 October 1929
• Citation: 124 So. 279,98 Fla. 731
• Parties: STATE ex rel. HANBURY et al. v. TUNNICLIFFE.
• Court: Florida Supreme Court

124 So. 279

98 Fla. 731

STATE ex rel. HANBURY et al. v. TUNNICLIFFE.

Florida Supreme Court

October 18, 1929

Mandamus by the State, on the relation of Annie B. Hanbury, joined by her husband, J. H. Hanbury, against W. H. Tunnicliffe, as receiver of the Commercial Bank & Trust Company of West Palm Beach.

Motion to quash alternative writ granted.

COUNSEL

Scofield & Scofield, of Inverness, for relators.

Winters Foskett & Wilcox, of West Palm Beach, for respondent.

OPINION

STRUM J.

This is a proceeding by mandamus, a case of original jurisdiction.

From the allegations of the alternative writ it appears that on June 28, 1926, Commercial Bank & Trust Company, a state bank having its principal office and doing a banking business in West Palm Beach, Fla., 'closed its doors and ceased to do business as a banking corporation.'

When the bank closed, the relator, Annie B. Hanbury, was a depositor therein, there being a balance due her upon an open checking account.

On November 29, 1926, respondent, W. H. Tunnicliffe, was appointed receiver of said bank by the comptroller, and his appointment was confirmed December 11, 1926, by the circuit judge of the Fifteenth circuit. In the comptroller's order appointing the receiver, it was recited that the bank had become insolvent and was unable to meet its obligations. In the order of the circuit court confirming the appointment it was adjudicated that said bank was insolvent.

On December 9, 1927, which was within one year after the confirmation of said receiver by the circuit court, but more than one year after the place of business of the bank was closed and the bank had ceased to do business, the bank having closed on June 28, 1926, the relator, Annie B Hanbury, filed claim with said receiver seeking the payment of dividends upon the checking account aforesaid. The claim was filed pursuant to a notice published by the receiver as authorized by section 6103, Comp. Gen. Laws 1927 (section 4163, Rev. Gen. St. 1920). The receiver refused to allow said claim, or to consider the same for the purpose of paying dividends, because it was not filed within twelve months from the date the bank closed. See chapter 7935, Laws of 1919 (section 6104, Comp. Gen. Laws 1927).

The matter now comes on to be heard upon respondent's motion to quash the alternative writ heretofore issued by this court.

The sole question presented is whether or not relator's claim is barred by chapter 7935, supra (section 6104, Comp. Gen. Laws 1927), the material portion of which follows:

'That all claims of every kind and nature against a State bank or trust company that has been placed in the hands of a receiver must be properly sworn to and filed with the receiver within one year from the date of the failure of the bank or trust company, and no claims which was not so filed within twelve months from the date the place of business of the bank or trust company was closed shall be included by the receiver or Comptroller in the distribution of the assets.'

Relator contends that there can be no 'failure' of a state bank in legal contemplation until the bank has been adjudged to be insolvent and a receiver has been appointed and confirmed by a circuit judge pursuant to section 4162, Rev. Gen. St. 1920 (section 6102, Comp. Gen. Laws 1927), since by authority of that section the bank may contest the 'rightfulness and legality' of such appointment, and that any 'failure' or 'closing' prior to that time is contingent only, there having been no judicial determination thereof until the receiver is confirmed, from which premise relator argues that the 'failure' or 'closing' of the bank contemplated by the act of 1919 occurs only upon the judicial determination thereof involved in the confirmation of the receiver, and that the date upon which the receiver is confirmed, and not the date upon which the bank actually closed, is therefore the date upon which the period of limitation for filing claims begins to run.

The fact, however, that the bank for which a receiver is appointed by the comptroller may contest the 'rightfulness and legality' of such appointment, thereby rendering its failure 'contingent' in one sense of the word until the receiver is confirmed, is not decisive of the question here presented. In that sense of the word, the failure may remain 'contingent' long after the confirmation of the receiver, for section 6108, Comp. Gen. Laws 1927 (section 4167, Rev. Gen. St. 1920, amended by Laws 1927, c. 11849) as amended by chapters 14487 and 13576, § 24, Acts of 1929, purports to authorize the comptroller upon conditions as may be approved by him, to thereafter surrender possession of the bank for the purpose of permitting it to resume business. Ex parte Amos, 94 Fla. 1023, 114 So. 760. If the construction of chapter 7935, supra, contended for by relator was adopted, and a bank never regarded in legal contemplation as having 'failed' until a receiver was appointed and confirmed, it would admit of the conjectural, but not impossible, consequence that, if the comptroller never appointed a receiver, or the bank's insolvency was never adjudicated, the bank would never have failed in legal contemplation, though it had long since suspended business and ceased to meet its obligations--a situation anomalous in the extreme. Moreover, as will be hereafter pointed out, a 'failure' of the bank as contemplated by this statute is not necessarily the same situation as 'insolvency.'

Relator further points out that no fixed time after closing is prescribed for the appointment and confirmation of a receiver, and that, if the time for filing claims with the receiver begins to run from the date of actual closing, a delay in the appointment of a receiver in the case of one bank might result in reducing the time actually available for filing claims to much less than a year, while in the case of another bank for which a receiver was promptly appointed substantially a full year would be available. Relator also argues that, if no receiver was appointed until more than a year after closing, the statute could not be complied with, if the period of limitation begins to run from the date of actual closing. The first proposition involves only a matter of legislative policy; the second is based upon a hypothesis not involved in the case before us, and it is unnecessary for us to consider that phase of the matter until it is presented to us. The possibility of such a case arising is very remote.

In the interpretation of statutes words in common use are to be construed in their natural, plain, and ordinary signification, unless it appears they were used in a technical or other sense. Southern Bell Tel. Co. v D'Alemberte, 39 Fla. 25, 21 So. 570. The Legislature is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, but simply seek to effectuate the intent of the Legislature. It is true there are cases in which it has been held that the letter of a statute must yield to a contrary legislative intent obviously appearing from the statute when considered as a whole or in pari materia with other statutes. Curry v. Lehman, 55 Fla. 847, 41 So. 18. Such cases are few and exceptional. Such a construction is sanctioned by the courts only when there are cogent reasons for believing that the letter does not accurately disclose the intent. U.S. v. Goldenberg, 168 U.S. 95, 18 S.Ct. 3, 42 L.Ed. 394; Osborne v. Simpson, 94 Fla. 793, 114 So. 543; Fine v. Moran, 74...