Weiscopf v. Comm'r of Banks

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY
• Citation: Weiscopf v. Comm'r of Banks, 258 Mass. 199, 154 N.E. 855 (Mass. 1927)
• Decision Date: 08 January 1927
• Parties: WEISCOPF v. COMMISSIONER OF BANKS et al.

258 Mass. 199

154 N.E. 855

WEISCOPF

v.COMMISSIONER OF BANKS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1927.

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition for bill of review by Augustus Weiscopf against the Commissioner of Banks and others to review a decree denying a petition to reclassify petitioner's certificates of deposit as claims against savings deposits of a bank in liquidation. Case reserved for the Supreme Judicial Court. Petition dismissed.

R. Cohn and B. Levin, both of Boston, for plaintiff.

H. O. Cushman, of Boston, and G. L. Vaughan, of Melrose, for defendants.

F. T. Field and S. Hoar, both of Boston, and R. A. Cutter, of Salem, amici curiae.

BRALEY, J.

The plaintiff at some time prior to November 8, 1923, brought a suit in equity against the commissioner of banks then in office and the Cosmopolitan Trust Company, alleging that when the commissioner took possession of the company for the purposes of liquidation he had on deposit $100,000 as shown by four certificates which in form purported to be issued by the commercial department. The petitioner acting on the statements of the liquidating agent duly filed proof of his claims against that department. It is further alleged that he was induced to make the deposit by the representations of a vice president of the company that they were savings department deposits, and that while dividends have been declared and paid to those depositors the liquidating agent has refused to recognize him as a participant. The relief prayed was that the commissioner be ordered to reclassify the deposits and pay to him his share of the dividends already declared, and which may be thereafter declared. A final decree was entered November 8, 1923. It reads as follows:

‘This case came on to be heard at this sitting upon the argument of the respective parties and the bill should be dismissed without costs and without prejudice, and therefore and upon consideration thereof it is, ordered, adjudged and decree that the bill be and the same hereby is dismissed without costs and without prejudice.’

[1][2][3][4] The petitioner prays for leave to bring a bill of review to review this decree. The defendant's motion to dismiss the petition for want of jurisdiction may be disregarded. The Question should have been raised by demurrer. See Worthington v. Waring, 157 Mass. 421, 32 N. E. 744,20 L. R. A. 342, 34 Am. St. Rep. 294;Security Bank of New York v. Callahan, 220 Mass. 84, 107 N. E. 385. We are bound, however, to take notice whether this court on the record has jurisdiction (Fourth National Bank v. Mead, 214 Mass. 549, 102 N. E. 69), and it is plain that the parties and the subject-matter in litigation are properly before us, and the case is to be decided on the bill and the answer filed subsequently to the motion to dismiss. The grounds on which a bill of review may be granted have been so recently pointed out in ...