Wilde, State Examiner v. Amoretti Lodge Co., 1859

• Decision Date: 18 February 1935
• Docket Number: 1859
• Citation: 41 P.2d 508,47 Wyo. 505
• Parties: WILDE, STATE EXAMINER, v. AMORETTI LODGE COMPANY, ET AL
• Court: Wyoming Supreme Court

41 P.2d 508

47 Wyo. 505

WILDE, STATE EXAMINER, v. AMORETTI LODGE COMPANY, ET AL

No. 1859

Supreme Court of Wyoming

February 18, 1935

APPEAL from the District Court, Fremont County; E. H. FOURT, Judge.

Action by A. E. Wilde, as State Examiner, and in charge of the liquidation of the banking firm of Amoretti, Welty, Helmer and Company, a co-partnership, against Amoretti Lodge Company and others, to recover possession of property mortgaged to the bank, securing an indebtedness. From an adverse judgment the plaintiff appeals.

Reversed.

For the plaintiff and appellant there was a brief by Ray E. Lee Attorney General; O. O. Natwick, Deputy Attorney General, and Richard J. Jackson, all of Cheyenne, and W. E. Hardin, of Lander, and oral argument by Mr. Jackson.

This action was one of replevin by A. E. Wilde as State Examiner and in charge of the liquidation of the banking firm of Amoretti, Welty, Helmer and Company, a partnership. Defendant, Amoretti Lodge Company, a corporation, mortgaged certain cattle and chattels to the banking firm to secure an indebtedness and thereafter sold the cattle, subject to such mortgage, to defendant Rocking Chair Ranch. Upon the closing of the bank, the plaintiff sought collection of said indebtedness and found it necessary to bring the action of replevin to obtain possession of the mortgaged chattels securing the note given to the bank by Amoretti Lodge Company. About July, 1927, Amoretti Lodge Company forfeited its corporate charter and its assets and property, thereafter vested in its directors, for the benefit of its creditors and stockholders. Several defenses were urged against the plaintiff's claim, namely, payment of the note by the execution of another note; the authority of the state examiner to maintain the action, and defendants attempted to show that Amoretti, Welty, Helmer and Company were not a bank, subject to liquidation by the state examiner. Banks are defined by Section 10-110, W. R. S. 1931. The examiner had authority to take charge of and liquidate the bank. Section 10-510, R. S. 1931. The bank had authority to close voluntarily by posting notice on its door and notifying the state examiner. Section 10-527, R. S. 1931. The term bank includes any person or association of persons carrying on the business of banking. Section 74-1702, R. S. 1931. The examiner had authority to collect money due the bank. Amoretti Lodge Company, in its mortgage, agreed to warrant and defend the title of the mortgaged property. Graham v. Blinn, 3 Wyo. 746. The plaintiff had a right to maintain an action against anyone who deprived him of any property by which the debt was secured. Reynolds v. Morton, 23 Wyo. 528. Plaintiff was entitled to recover the amount of the debt and his costs. Thex v. Shreve, 38 Wyo. 285. The judgment was erroneous and should be reversed.

For the defendants and respondents, there was a brief by G. J. Christie, of Lander, and oral argument by Mr. Christie.

Several extensions of time were granted plaintiff within which to file his transcript of evidence, but no time was extended for the filing of his record on appeal. The record on appeal was in fact not filed within the time allowed by law. Kendrick v. Healy, 26 Wyo. 266. There was no proof that the partnership was insolvent. If considered as a bank, it was not insolvent unless the conditions prescribed by statute existed. Section 10-501, R. S. 1931. A partnership is only insolvent when the partners themselves are insolvent. Section 81-307, R. S. 1931. The record is silent as to insolvency. The Banking Act does not confer upon the state examiner judicial authority to determine the insolvency of partnerships, even though they be unlawfully engaged in banking. See Section 10-101, R. S. 1931; also Section 10-103, R. S. 1931 and Section 10-105, R. S. 1931. Sections 10-110, 111 and 112 should be construed together in seeking a definition of a bank. It is clear that the plaintiff exceeded his official authority. Section 10-510, R. S. 1931. It was not denied that the defendant, Rocking Chair Ranch, had paid for the cattle. After the dissolution of a partnership, a partner cannot bind the same, except in the completion of unfinished transactions. Amoretti Lodge Company had funds on deposit to pay its indebtedness at the time the bank was closed and the amount of said deposit should have been credited against its indebtedness by the plaintiff. 3 R. C. L. 529; Colton v. Dover Association, 46 L. R. A. 388. The appellant drew the judgment while the judge was ill in the hospital, and without submitting it to respondent for approval as to form or substance, procured the signature of the judge. Appellant for that reason cannot at this time complain of the judgment. The original action was without merit and there is no vital question in the appeal. Appellant should be taxed for briefs. Section 89-4904, R. S. 1931. As the appeal was not filed in time and the petition does not state facts sufficient to authorize a judgment in favor of the plaintiff, plaintiff being without authority to maintain the suit, and the cattle in controversy were paid for, it is submitted that the judgment of the trial court should be affirmed.

Ray E. Lee, Attorney General; W. E. Hardin and Richard J. Jackson in reply.

Payment is an affirmative defense and cannot be shown under a general denial. 8 C. J. 940. The burden of proof is upon the party pleading payment. Kelly v. Dillman, 38 Wyo. 346. A note in possession of plaintiff bearing no indication of payment raises presumption that it is unpaid. Stock Growers Bank v. Crosby, 39 Wyo. 454. The banking firm had been in the hands of the examiner since January, 1933, under his authority as a liquidator of insolvent banks, and the presumption is that he properly performed his duties. The record shows the entry of judgment. Cottier v. Sullivan, (Wyo.) 31 P.2d 675. Orders extending time for filing Transcript of Evidence clearly meant the record on appeal. The Rocking Chair Ranch had notice that the note had not been paid.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case is a replevin action wherein the District Court of Fremont County entered a judgment in favor of the defendants, and the plaintiff has brought the record here by direct appeal for review.

The facts material to be considered are these: That on or about May 17, 1927, the defendant, the Amoretti Lodge Company, a Wyoming corporation, executed and delivered to Amoretti, Welty, Helmer and Company, a firm conducting a banking business at Dubois, in Fremont County, Wyoming, a chattel mortgage upon certain cattle, together with other personal property therein described, the instrument being duly recorded as required by law. This mortgage was given to secure the payment of a promissory note for one thousand dollars, likewise dated May 17, 1927, due November 17, 1927, in favor of the firm aforesaid, and signed by the Amoretti Lodge Company.

Subsequently, and on or about July 19, 1927, the certificate of incorporation of the company last above mentioned was forfeited, and the defendants, E. Amoretti, Jr., and Eloise Amoretti, his wife, the surviving members of its board of directors, as required by law, took over the assets and property belonging to it, as trustees, for the benefit of its creditors and stockholders. On November 25, 1927, John A. Reed, in his official capacity as State Examiner, took charge of the property and business of the banking firm aforesaid, and he and his successors in office have proceeded with the liquidation of its affairs thus assumed, A. E. Wilde, the plaintiff herein by substitution, being now the State Examiner in charge.

Some time during the month of February, 1927, the defendant, the Rocking Chair Ranch company, a corporation, organized under the laws of Wyoming, through its president and manager, Foster S. Scott, purchased from the Amoretti Lodge Company, 78 head of the cattle covered by the mortgage aforesaid, the animals thus obtained and paid for being valued at the sum of fifteen hundred dollars. The defendant, E. Amoretti, Jr., represented the vendor in the transaction. Before payment was made by Scott, he knew there was this mortgage on the cattle, Mr. Welty, one of the members of the banking firm aforesaid, having theretofore cautioned him regarding it. The day Scott paid Amoretti, he talked the matter over with the latter, and Amoretti said that he would "take up the mortgage at once. "

On October 9, 1930, the State Examiner, claiming that no part of the indebtedness aforesaid had been paid, except the sum of $ 50 on account of interest to November 17, 1927, and the sum of $ 99.98 credited on the principal on November 25, 1927, brought the replevin action above mentioned to recover possession of the cattle purchased, as already described, by the Rocking Chair Ranch company. Plaintiff's petition, in addition to the usual allegations in such a proceeding, stated that on November 25, 1927, the banking firm aforesaid, became insolvent, and that thereupon, the State Examiner took possession of its assets, and that, as such official, he was entitled to "receive and collect all debts due and claimed belonging to said banking firm." By stipulation entered into between the plaintiff and the Rocking Chair Ranch company, bonds were delivered to the sheriff by each of these parties, as a consequence of which the plaintiff agreed to duly prosecute his action, and the company last mentioned agreed to re-deliver the cattle to the plaintiff if that be so adjudged, and pay all costs and damages that might be awarded against it. The cattle in question remained with the said defendant and some have been sold.

The Amoretti Lodge Company and its trustees above named joined in an answer...