Tyler County State Bank v. Shivers

• Decision Date: 06 February 1926
• Docket Number: (No. 1314.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Tyler County State Bank v. Shivers, 281 S.W. 264 (Tex. App. 1926)
• Parties: TYLER COUNTY STATE BANK et al. v. SHIVERS.
• Court: Texas Court of Appeals

281 S.W. 264

TYLER COUNTY STATE BANK et al. v. SHIVERS.

(No. 1314.)^*

Court of Civil Appeals of Texas. Beaumont.

February 6, 1926.

Rehearing Denied February 24, 1926.

Appeal from District Court, Tyler County; J. M. Combs, Judge.

Action by Robert A. Shivers, trustee, against the Tyler County State Bank and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Dan Moody, Geo. E. Christian, and Jno. W. Goodwin, all of Austin, for appellants.

J. A. Mooney, J. E. Wheat, and Coleman & Lowe, all of Woodville, and Robert A. Shivers, of Port Arthur, for appellee.

O'QUINN, J.

The following statement of the nature and result of the suit is taken from appellants' brief:

"Plaintiff, Robert A. Shivers, trustee, instituted this suit as trustee, in the district court of Tyler county, Tex., against Tyler County State Bank and J. L. Chapman, commissioner of banking of the state of Texas, to recover the sum of $20,000, and to establish said sum as a trust and preferred claim against all of the assets of the Tyler County State Bank in the hands of the banking commissioner of Texas.

"The Tyler County State Bank is a banking corporation, incorporated under the laws of the state of Texas, and operating under the depositors' guaranty fund plan. On the 28th day of March, 1921, said bank closed its doors and placed itself in the hands of the banking commissioner for liquidation.

"Plaintiff alleges in his petition that he sues as trustee for the parties listed in his petition. For cause of action he states that the parties for whom he sues were on the 28th day of March, 1921, the owners of certain United States Liberty Loan bonds and war savings stamps issued by the United States government, aggregating $19,219.75; that said parties did on and before the 28th day of March, 1921, deposit said property in Tyler County State Bank, as special deposits to be redelivered to said parties upon demand, and that said bank promised to redeliver said property to said parties. Plaintiff further alleges that prior to its failure said Tyler County State Bank hypothecated and sold all of said property deposited with it for the sum of $20,000, and received the proceeds therefrom, and mixed and mingled said proceeds with its assets, and converted said proceeds into other assets, the nature of which plaintiff was not acquainted with. Plaintiff states that said funds were trust funds, and were mixed and mingled with the assets of said bank at the time it was closed and taken in charge by the commissioner of banking, and that said property and proceeds are now in the hands of said commissioner. It is asserted by plaintiff that the aforesaid proceeds increased the assets of said bank by the amount thereof as taken over by the banking commissioner, and that, by virtue of the mixing and mingling of said proceeds with the assets of said bank, plaintiff is entitled to a preference lien on all of the money and property of said bank in the hands of the commissioner of banking. Judgment is prayed for the amount of money and property now in the hands of said commissioner, equivalent to the amount received by Tyler County State Bank for the property deposited with it as aforesaid, and it is further prayed that said amount be established as a trust fund and preferred claim against all of the assets of said bank.

"Defendants filed answer in which they pleaded, in addition to a general demurrer, two special exceptions and a general denial, `that each of the parties whose claim or demand is sued upon herein by plaintiff as trustee, except Henry Tucker, presented his claim to the commissioner of insurance and banking as common creditor's claim, thus electing the character of a common creditor, and, having so elected, plaintiff cannot now recover if at all on the theory that the funds described in his petition are trust funds.'

"The case was tried by the court without the intervention of a jury, and resulted in a judgment in favor of plaintiff against defendants in the sum of $17,295, in which said judgment said sum was established as a trust fund in the hands of the commissioner of banking, classified and established as a preferred claim against the assets of said bank in the commissioner's hands and said commissioner ordered to pay said claim in preference to all other claims against said bank."

From this judgment defendants bring this appeal.

The facts are without dispute. Appellant Tyler County State Bank was a banking corporation, doing a banking business under and by virtue of the laws of the state of Texas, at Woodville, in Tyler county, Tex., and was operating under the guaranty fund plan. The judgment recites the names of the individuals and the amount of each that the court found had deposited Liberty bonds with appellant bank. There is in the record an agreed statement of certain named persons who had bonds deposited for safe-keeping giving the amounts of each, but it does not cover all of the persons named in the findings of the court in his judgment. However, appellants have not challenged the correctness of any of the findings of fact made by the court in his judgment, so they stand as fully ascertained facts, without question. The said agreement, above referred to, further admits that, prior to the closing of said Tyler County State Bank, said bank converted and sold each and all of the bonds in question, and made the basis of plaintiffs' suit, and that said bonds were sold and converted by said Tyler County State Bank prior to the 28th day of March, 1921, the date said bank ceased to do business and was closed by the banking commissioner, and prior to the time that any of the property in said bank was taken in charge and was placed in the custody and control of the commissioner of insurance and banking of the state of Texas. The record also contains an agreement that appellee, Robert A. Shivers, prior to the institution of this suit, was authorized, by all the parties named in plaintiffs' petition as holders of claims against the Tyler County State Bank for the value of the Liberty bonds and United States certificates converted, to institute this suit in his name as trustee for them and in their behalf.

In addition to the agreement in the record, that the parties named in plaintiffs' second amended original petition were the owners and holders of Liberty bonds deposited in the Tyler County State Bank, and which were sold and the proceeds thereof converted by the bank, it was further agreed that certain of them, being the ones named on pages 45, 46, and 47 of the statement of facts, each presented his claim to the commissioner of insurance and banking before the suit was filed, and based their said claims on said Liberty bonds for their face value as common creditors of said Tyler County State Bank, and that said claims were accepted by the banking commissioner as common creditor claims, and the presentation and proof of said claims were made prior to the time when said claims were assigned or transferred to appellee, Shivers, as trustee, for the purpose of this suit. No dividends or payments were made to, or received by, any of the owners of the bonds. We also gather from the record that, at the date of the closing of the bank, there were assets on hand other than notes, $10,502.61; that in addition to this the bank held notes in the sum of $86,155; that, after the bank passed into the hands of the banking commissioner for liquidation to the date of the trial, approximately the sum of $29,825 had been collected on the notes.

Appellants' first and second assignments of error are:

"(1) The court erred in overruling the general demurrer of defendant, the Tyler County State bank, to plaintiff's second amended original petition.

"(2) The court erred in overruling the general demurrer of defendant J. L. Chapman, banking commissioner of Texas, to plaintiff's second amended original petition."

The assignments are overruled. The petition states a cause of action. Cochran v. Sonnen (Tex. Civ. App.) 26 S. W. 521; Bank v. Weems, 6 S. W. 802, 69 Tex. 489, 5 Am. St. Rep. 85.

Appellants' third and fourth assignments are not followed by any propositions, and hence cannot be considered.

The fifth assignment of error is:

"The court erred in rendering judgment in favor of plaintiff for the sum of $17,295."

The assignment is too general. It points out no error, does not state wherein the court erred. City of Galveston v. Devlin, 19 S. W. 395, 84 Tex. 319, 326. Appellants submit the following propositions, based upon the above assignment:

"(1) Where, in an action against an insolvent bank in the hands of the commissioner of banking and the commissioner of banking to recover the proceeds of trust property alleged to have gone into the assets of said bank, defendants allege and the undisputed evidence shows that the parties for whom plaintiff sues had, prior to assigning said claims and prior to filing suit, filed their claims with the commissioner of banking as common creditors, and that said claims had been approved by said commissioner as common creditor claims, and adjudication is shown, and plaintiff is not entitled to recover judgment as a preferred creditor.

"(2) Where, in an action against an insolvent bank in the hands of the commissioner of banking and the commissioner of banking to recover the proceeds of trust property alleged to have gone into the assets of said bank, defendants allege and the undisputed evidence shows, that the parties for whom plaintiff sues had prior to assigning said claims and prior to filing suit filed their claims with the commissioner of banking as common creditors and that said claims had been approved by said commissioner as common creditor claims, an election is shown, and plaintiff is not entitled thereafter to recover judgment as a preferred creditor."

It is not believed that these propositions can be looked to in aid of the assignment of error. The assignment itself is unquestionably too...