223 P. 239 | Or. | 1924
It is elementary law that the facts stated in the complaint are admitted by a demurrer thereto. It appears from the allegations of the complaint that the defendant, Bramwell, was wrongfully about to pay one of the creditors of the Crook County Bank, an insolvent corporation, to the irreparable injury of the other creditors. The sole contention of the defendant, Bramwell, on this appeal is that the court was without authority to issue the preliminary injunction. This contention of the plaintiff is based upon the language in Section 6221, Or. L., which reads as follows:
“No attachment, injunction or execution shall be issued against such bank or its property before final judgment in any suit, action or proceeding in any court of competent jurisdiction.”
As is pointed out in the prior decision of this court the Crook County Bank is not a party to this suit. No injunction was issued against it or its property. The injunction was the reverse of that. The injunction prohibited the defendant, Bramwell, from unlawfully and wrongfully giving a preference to one of the creditors of the insolvent bank. Instead of the injunction operating against the insolvent bank or its property, it operates to preserve that property until the court renders a proper order regarding the distribution of the funds.
The legislature of this state has not manifested any intention of depriving the courts of the state of their usual functions in the adjudication of disputes ; on the contrary, Section 6221, Or. L., invokes the functions of the courts to adjust any differences that may arise with reference to claims against insolvent banks. It is admitted in this regard that the defendant, Bramwell, was about to pay a claim
The record does not disclose that the affairs of the insolvent bank had been submitted to the court. The money was about to be paid out by the superintendent of banks without an order of the court. The respondent was entitled to the protection of the court. He was threatened with an irreparable injury to his property. The fact that the bank was in charge of the superintendent of banks did not oust the court of its jurisdiction. The administration of insolvent banks by the superintendent of banks is subject to the supervision of the courts: Upham v. Bramwell, 105 Or. 597 (209 Pac. 100, 210 Pac. 706, 25 A. L. R. 919).
The bond given by the superintendent of banks would not have protected the respondent. The
The decree of the Circuit Court is affirmed.
Affirmed.