Zimmerman v. Chelsea Sav. Bank
| Decision Date | 14 July 1910 |
| Citation | 127 N.W. 351,161 Mich. 691 |
| Parties | ZIMMERMAN, Commissioner of Banking, v. CHELSEA SAVINGS BANK et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
On rehearing.
For former opinion, see 125 N. W. 424. Affirmed.
Argued before OSTRANDER, HOOKER, MOORE, McALVAY, BROOKE, BLAIR, and STONE, JJ.
We said in the foregoing opinion, concerning the question of the prerogative right of the state as creditor to be preferred to other creditors of the debtor: ‘The question is not presented for decision in this case, unless, assuming the right to exist, the intervening surety may insist upon the exercise of the right by the state.’ We proceeded then to apply the rule that at the common law the right of the sovereign to priority over other creditors of a debtor was one which must be asserted before the assets of the debtor had passed beyond his control. On the application for rehearing it was urged that the opinion did not meet the contention that the intervening petitioner is, as to the state, a surety of the debtor, and that the state itself, by its officers, instituted the action which divested the debtor of its property. The opinion does not answer precisely this contention, for which reason and because one of the justices who took part in the decision had left the bench before the motion for rehearing was presented, it was ordered that the cause be reheard.
In the former opinion some reference is made to authority. Further references are: The note to 1 Kent's Commentaries, star page 248; State v. Williams, 101 Md. 529, 61 Atl. 297,109 Am. St. Rep. 579, s. c., 4 Am. & Eng. Ann. Cas. 970, 973, and note, s. c., 1 L. R. A. (N. S.) 254, and note; In re Receivership of Columbian Insurance Co., 3 Abb. Dec. (N. Y.) 239; Central Trust Co. v. N. Y., etc., R. R. Co., 110 N. Y. 250, 18 N. E. 92,1 L. R. A. 260;In re Ginsburg, 27 Misc. Rep. 745,59 N. Y. Supp. 656. The cases arose upon the assertion in some form of the alleged right of the state. The opinions relied upon by appellant are judicial assertions that in the particular jurisdiction this prerogative right of sovereignty, as recognized by the common law, has been asserted by the very act of adopting the common law into the jurisprudence of the state, and therefore may be enforced by the courts. This is the form of the contention made by appellant, and it is this alleged right of the state which it is claimed should have been exercised in the particular case, and that the surety stands, before the...
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