40 Neb. 216 | Neb. | 1894
On, and some time prior to, the 13th day of November, 1891, Charles Homan and Carl Arnold (hereinafter called' “the bank”) were associated together as partners under the name of Kloman & Arnold, and conducting a general banking business in the city of Broken Bow, Custer county, Nebraska. David Weimer was a depositor in said bank, and on said date it was indebted to him in the sum of' $2,414.56. On said date he brought a suit in the district court of Custer county against- said bank, caused an attachment to be issued and levied upon certain real estate belonging to said bank. Afterwards, one George W. Goodell was, by an order of this court, appointed receiver of said bank, and he filed a motion in said suit brought by Weimer against the bank in the district court of Custer county to discharge said attachment. This motion the district court overruled, sustained the attachment, and ordered' the attached property to be sold. The receiver has filed a' petition in error in this court to reverse said order.
The receiver alleged in his motion to dissolve said attachment, as his grounds therefor, that at the time of the levy of the writ of attachment the bank had been closed by order of the officers of the “ state banking board,” and' that the property seized by the attachment was at the time in the hands of a receiver, and in the hands of the officers of the “state banking board of Nebraska,” and was not subject to attachment.
The motion to dissolve the attachment was tried by the district court on a stipulation of facts. From this stipula-' tion it appears that Weimer’s attachment was levied upon the real estate by the sheriff of Custer county on the 13th' of November, 1891; that the bank was then unable to pay its obligations; that before noon of said day the bank suspended business and posted on its doors a notice as follows: “Bank closed. In hands of receiver. Depositors
The real contention of the receiver is that after the bank suspended business and closed its doors on the 13th, its property was not subject to attachment at the suit of a creditor, but that all the bank’s assets from that moment became a trust fund to be divided pro rata among all the bank’s creditors; or, if the property of the bank was subject to attachment on the 13th, then the appointment of a receiver on the 19th vacated the attachment. If the contention of the receiver is correct, it must be so because of some express statute or arise by operation of law from the fact 'of the receiver’s appointment. We have been cited by counsel to no statute, nor have we been able, after a careful search, to find a statute which exempts the property of an insolvent banking association from an attachment at the suit of the creditors; nor that divests the lien of an attachment already levied by reason of the appointment of a receiver thereafter for such association.
It is said by the receiver that under the banking act, chapter 8, Compiled Statutes, 1893, the district court of Custer county had no jurisdiction over the bank or its property, and that the only remedy a creditor of said bank had for the pollection of his debt was to await the appointment of a receiver, the winding up of the affairs of the bank by that officer, and the distribution of the bank’s assets. We ■do not agree with either of these contentions. By section 9, article 6, of the constitution the district courts are given both chancery and common law jurisdiction and such other jurisdiction as the legis'ature may provide; and by section 34, chapter 19, Compiled Statutes, 1893, the
Another argument of the receiver is that inasmuch as the assets of a national bank are not liable to be attached at the suit of a creditor, the legislature must have intended, by the enactment of the banking law of this state, that the assets of an insolvent banking association from the moment of its insolvency should occupy the same status as the assets of an insolvent national bank. If the legislature had intended by the banking act to render the property of an insolvent bank exempt from an attachment at the suit of one of its creditors it would doubtless have said so. The national banking act expressly provides that theUnited States shall have a first and paramount lien upon all the assets of the bank, and that no attachment shall be issued against said association or its property till final judgment rendered in the suit brought.
Counsel for the receiver cite us to State v. Commercial State Bank, 28 Neb., 677, as an authority for their contention. In that case one McConaughy was a large stockholder in the
■ In Beech, Receivers, section 202, it is said: “It is a general rule that the receiver obtains title subject to all liens previously acquired, but this rule is applicable only
A question' very similar to the one at bar arose and was-decided in Hubbard v. President and Directors of the Hamilton Bank, 48 Mass., 340. In that case the Phoenix Bank stopped payment on the 3d day of October, 1842, and afterwards, on the same day, the Hamilton Bank brought a suit against the Phoenix Bank in the common pleas court in Suffolk county, had an attachment issued and levied upon the real and personal property of the Phoenix Bank. On the 6th of October, “on the application of the bank commissioners,” the supreme court of Massachusetts issued an injunction restraining the Phoenix Bank from transacting any further business until a hearing could be had. On the 18th of October the supreme court appointed a receiver to take possession of the assets of the Phcenix Bank. The receivers then filed a petition in the supreme court praying it to enjoin the Hamilton County Bank from further prosecuting its suit at law against the Phoenix Bank and to dissolve ■the attachment levied upon the property of the Phoenix Bank. The court by Dewey, justice, said: “ This leads us ■directly to the consideration of the effect to be given to an injunction upon a banking corporation, and the appointment of receivers under the statute, and in connection therewith, and as the material inquiry in the present case, to consider the nature and effect of an attachment on mesne process and to what extent such attachment constitutes a lien or incumbrance upon' the assets of the bank. The power and authority of receivers appointed under the provisions of the statute referred to are not' distinctly defined by this statute, but it is provided, in general terms, that one
In Breene v. Merchants & Mechanics Bank, 17 Pac. Rep. [Col.], 280, the Merchants & Mechanics Bank suspended payment on the afternoon of the 30th day of January, 1884. It was then, and had been for some time, insolvent. At the time it closed its doors it was indebted to Breene in the sum of $7,000, and on that day he brought a suit against the bank to recover the amount due him and caused an attachment to be issued and levied upon the assets of the bank. Six days later, on application of the stockholders, one Talbot was appointed receiver for the bank. He intervened in the suit brought against the bank by Breene and filed a motion to dissolve the attachment. The supreme court of Colorado held that the creditors of insolvent corporations, as those of other insolvents, have no equitable liens superior to an attachment unless a court of equity lawfully assumes jurisdiction before such attachment; and reversed the judgment of the district court, .which had dissolved the attachment on the motion of the receiver.
The lien acquired by Weimer on the real estate of the bank by the levy of his attachment thereon was not dissolved by the appointment of a receiver to take charge of
There are a few things which remain to be said of this case. The record before us does not show how the receiver became a party to the suit brought by Weimer against the bank. We presume that he made application to the district court to be made a party. We are led to this remark because the receiver seems to be under the impression that by reason of the fact that he was appointed receiver of the assets of the bank by'lhis court, he is not subject to the rules governing other litigants. In the case brought by Weimer against the bank in the district court the receiver was entitled to be made a party to the action; but he owed it to that court to make a formal application for that purpose; and when he was once a party to the suit he submitted himself to the jurisdiction of the court, and whatever steps he desired to take in the case he was compelled to take under the same rules and regulations as any other litigant. The stipulation of facts on which the court below tried the motion to dissolve the attachment is in the record here, but is not incorporated into any bill of exceptions. For that reason alone we might have affirmed the judgment of the district court. After the district court had overruled the motion of the receiver to discharge the attachment the receiver applied to this court for, and obtained, an injunction restraining the sheriff of Custer county from selling the real estate attached by Weimer. This injunction we ought not to have granted. If the receiver desired to stay the execution of the order of the district court and prevent a sale of the property attached, ,he had a plain and adequate remedy at law by filing in this court, with his petition in error, a supersedeas bond.
We have deemed it our duty, notwithstanding the failure of the receiver to comply with the matters alluded to above, to dispose of this case upon its merits; still we think it
Affirmed.
