Therrell v. Rinaman

• Decision Date: 22 October 1932
• Citation: 107 Fla. 110,144 So. 327
• Parties: THERRELL v. RINAMAN et al.
• Court: Florida Supreme Court

144 So. 327

107 Fla. 110

THERRELL v. RINAMAN et al.

Florida Supreme Court, Division B.

October 22, 1932

Suit by R. L. Rinaman and another against J. H. Therrell, as liquidator of the Biscayne Trust Company. Decree for plaintiffs, and defendant appeals.

Affirmed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Redfearn & Ferrell, of Miami, for appellant.

Carl T Hoffman, of Miami, for appellees.

OPINION

DAVIS J.

The Legislature of the state of Florida, by the enactment of section 19 of chapter 13576, Acts of 1929, Laws of Florida (section 6102, Comp. Gen. Laws 1932 supplement), provided as follows:

'On becoming satisfied, from the reports furnished to him by a State bank examiner, or upon other satisfactory evidence thereof, that any bank, banking firm, banker, banking or trust company, or corporation doing business in this State under the State laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm or trust company or corporation doing business in this State, under such State laws, is in an unsound condition, or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without authority of law or in violation of law, or if the directors of any bank, banking or trust company, or corporation, or any banker or the management of any banking firm doing business in this State under the State laws, shall knowingly violate, or knowingly permit any of its officers agents or servants to violate any of the provisions of law relative to such bank, bankers, banking firms, banking or trust companies, or corporations doing business in this State, the rights, privileges and franchises shall be subject to be forfeited, and the State Comptroller may in his discretion forthwith designate and appoint a liquidator to take charge of the assets and affairs of such bank, and require of him such bond and security as the Comptroller deems proper, not exceeding double the amount that may come into his hands, and such liquidator shall be subject to dismissal by the comptroller, whenever in his judgment such dismissal is deemed necessary or advisable; when one liquidator is dismissed another may be duly designated and appointed. Such liquidator under the direction and supervision of the Comptroller, shall take possession of the books, records and assets of every description of such bank, banker, banking firm, banking and trust company, or corporation, and in his name shall sue for and collect all debts, dues and claims belonging to it, and upon the order of a court of competent jurisdiction may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such bank, banker, banking firm, banking and trust company, or corporation, on such terms as the court shall direct; and may, if necessary, to pay the debts of such bank, banker, banking firm, banking and trust company, or corporation, sue for and enforce the individual liability of the stockholders. Such liquidator shall pay all money received by him to the State Treasurer to be held as a special deposit for the use and benefit of the creditors, subject to the order of the Comptroller, and shall also make quarterly reports to or when called upon, to the Comptroller of all of his acts and proceedings. * * *'

By other provisions of the statutes (section 6099 et seq., Comp. Gen. Laws, section 4159 et seq., Rev. Gen. St.), the comptroller of the state of Florida has been vested with the power and duty of winding up and liquidating the affairs of insolvent banks and trust companies, and the authority, powers, and duties of the comptroller and his statutory liquidator in such cases are controlled by such statute. That neither the comptroller nor his liquidator have any powers except those which have been conferred upon them by provisions of statute law, either in express terms or by necessary implication, or such as are incident to the express powers given, is a proposition which is not capable of successful contradiction. Bryan v. Bullock, 84 Fla. 179, 93 So. 182; Power v. Chillingworth, 93 Fla. 1030, 113 So. 280.

On June 11, 1930, the Biscayne Trust Company suspended business and the comptroller of the state of Florida, as was his right and duty under the statutes, took possession, custody, and control of said institution by reason thereof. And in the exercise of the authority by law in him vested, said comptroller appointed the appellant, J. H. Therrell, as liquidator of the defunct institution, which appointment was in due course confirmed by the circuit court.

The said J. H. Therrell, as such liquidator of the Biscayne Trust Company, was entering into negotiations with the Reconstruction Finance Corporation of the United States ^[1] and one Julia Mooney, for the purpose of borrowing from each and both of them money to be used for the following purposes: (a) To pay taxes and insurance on any and all properties now held and constituting a part of the general assets of the Biscayne Trust Company; (b) to pay interest on any and all indebtedness due and owing by Biscayne Trust Company, whether secured or unsecured by mortgage or other incumbrances, upon any of the property now held in and constituting a part of the general assets of the Biscayne Trust Company and where the liquidator is legally obligated to make such payments; (c) to pay the expenses of reconditioning and rendering habitable any property held in and constituting a part of the general assets of the Biscayne Trust Company; (d) to pay attorney's fees, court costs, rents, and salaries of necessary employees incurred in the conduct of, the liquidation of said Biscayne Trust Company and the preservation of its assets; (e) to advance and pay taxes, insurance, costs, expenses, and attorney's fees connected with the foreclosure of mortgages on property held by Biscayne Trust Company, individually and as trustee for others, and any and all other charges and expenses in connection with the property for the conservation and preservation of such properties as are acquired by it individually and as trustee under foreclosure proceedings; (f) to satisfy mortgage incumbrances and refinance mortgage incumbrances on properties, the fee-simple title to which is now or may hereafter become vested in or acquired by Biscayne Trust Company, or the liquidator thereof, individually or as trustee, for the benefit of bondholders or trust beneficiaries through, or as a result of, the foreclosure of trust deeds or mortgages or otherwise; (g) to pay dividends to the depositors and creditors of said Biscayne Trust Company.

R. L. Rinaman, as stockholder and common creditor of the Biscayne Trust Company, and the Investment Company of North America, Inc., as a preferred creditor of said Biscayne Trust Company, brought a bill in equity against the liquidator to enjoin him from borrowing any money, or making any loans, and from pledging or attempting to pledge, or incumbering or attempting to incumber, the assets, either real or personal, of said Biscayne Trust Company, and from giving or attempting to give any person, firm, or corporation, including the Reconstruction Finance Corporation of the United States, any lien upon any of the insolvent company's assets as the result of any loan negotiated or attempted to be negotiated by the said liquidator for any of the purposese mentioned.

After a hearing on bill and answer, the court sustained the bill and granted the injunction as prayed. It is from the final decree so entered that this appeal has been prosecuted to this court by the liquidator.

Under the present laws of this state a bank receivership is purely statutory. The Legislature, by providing a plain, complete, and adequate method of statutory liquidation of insolvent banks, has divested the courts of their ordinary chancery jurisdiction and prerogative to appoint receivers of state banks and in directing them and controlling them as officers of the court, at least until the statutory method of administration has been duly alleged and proved to be inadequate to protect some legal or equitable right judicially asserted and prayed to be protected. State ex rel. Dade County Security Co. v. Barns, Circuit Judge, 99 Fla. 1258, 128 So. 860; State ex rel. Knott v. Willmer (Fla.) 135 So. 859; State ex rel. Landis, Attorney General, v. Circuit Court Eleventh Judicial Circuit (Fla.) 135 So. 866.

Thus under the laws of this state as at present constituted, the state comptroller can only take possession of the property and business of a bank under the statute, and not as an officer of the court. Bryan v. Bullock, 84 Fla. 179, 93 So. 182. By virtue of the statute the comptroller takes possession, holds and administers the affairs of defunct banks and trust companies without the aid of, and even despite judicial action. See Bank of Bay Biscayne v. Hankins (C. C. A.) 42 F. (2d) 209; Amos v. Trust Co. of Fla. (C. C. A.) 54 F. (2d) 286.

The liquidator whom the comptroller is authroized by the statute to appoint, is an executive creature of the legislative enactment, and can exercise only such powers as those with which, by force of the statute he is expressly or impliedly vested. To put it another way, the comptroller and his statutory liquidators are executive officials or functionaries of the state, and neither is an officer of the court, which latter is required to adjudicate the fact of the bank's insolvency by confirming the...