Taylor v. Weckerly

• Decision Date: 17 September 1903
• Docket Number: 12,269
• Citation: 96 N.W. 618,69 Neb. 739
• Parties: CADET TAYLOR ET AL. v. JAMES M. WECKERLY
• Court: Nebraska Supreme Court

96 N.W. 618

69 Neb. 739

CADET TAYLOR ET AL. v. JAMES M. WECKERLY

No. 12,269

Supreme Court of Nebraska

September 17, 1903

ERROR to the district court for Douglas county: WILLIAM W. KEYSORDISTRICT JUDGE.Affirmed.

AFFIRMED.

Arthur S. Churchill, for plaintiffs in error.

Arthur C. Wakeley, contra.

ALBERT C. AMES and DUFFIE, CC., concur.

OPINION

ALBERT, C.

In June, 1896, the state bank examiner reported the defendant bank insolvent to the state banking board, which thereupon directed the attorney general to institute proceedings for the appointment of a receiver, the examiner retaining possession of the assets of the bank.Afterward, in the same month, H. O. Devries, president, Cadet Taylor, vice-president, Daniel T. Mount, a director, and the Globe Loan & Trust Company, a stockholder, of the bank, furnished a bond in compliance with the proviso in section 35, chapter 8, Compiled Statutes (Annotated Statutes, 3735), for the voluntary liquidation of the liabilities of the bank, within three years from the date of the bond.The bond was approved by the state banking board, which, thereupon, directed the bank examiner in custody of the assets of the bank to turn them over to Cadet Taylor, one of the parties furnishing the bond, which was accordingly done.

On the 30th day of March, 1896, and before the bank had been found insolvent, it issued a certificate of deposit to James M. Weckerly, the plaintiff, for $ 1,050, payable seven months after date, which was wholly unpaid after the time fixed in the bond for the liquidation of the liabilities of the bank, and at the commencement of this action.

This action was brought on the bond, by the plaintiff, against all the obligors, to recover the amount due on the certificate of deposit.While the action was pending in the district court, the defendantH. O. Devries died, and the action was revived in the name of his administratrix.

The petition, among other things, alleges that, upon the approval of the bond, the state banking board turned over the assets of the bank to the parties furnishing the bond, namely, the defendants, Cadet Taylor, H. O. Devries, David T. Mount and Globe Loan & Trust Company, who thereupon took and assumed and who have ever since remained in possession and control thereof.The bank made default.The other defendants answered, denying that the assets had been turned over to the said parties furnishing the bond, and alleging that the assets were turned over to Cadet Taylor alone, who thereupon took and has ever since been in possession and control thereof.The reply denies that the assets were turned over to Cadet Taylor alone, but avers that, if they were nominally delivered to Taylor, they were so received by him for and in behalf of himself and the other defendants furnishing the bond, and with the knowledge, approval and ratification of all the defendants; that whatever has been done by said Taylor with respect to the custody, management and disposition of the assets of the bank, has...