Breese v. Bramwell

| Or. | Feb 19, 1924

COSHOW, J.

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 from the funds of the insolvent bank wrongfully to the irreparable injury of the plaintiff and other creditors of that bank. If the court had been without power to prevent that wrongful action on the part of the defendant, Bramwell, the mischief would have been done. It might have been too late thereafter to have undone the wrong. The excerpt from said Section 6221, Or. L., is not applicable to the facts in the instant suit. No doubt the courts would enforce that provision of the statute if some creditor should have funds belonging to an insolvent bank attached or seized upon execution or the control of the superintendent of banks prevented by a writ of injunction. But such a state of facts does not exist in the instant suit. As has been said above, the reverse of that state of facts is presented in the instant case: Instead of the funds of the insolvent bank being seized by some creditor, according to this record, they were about to be wrongfully paid out by the superintendent of banks.

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 surety on Ms bond would not be liable for loss to a depositor resulting from a mistake of judgment of the superintendent of banks or Ms duly appointed and qualified deputy. "We will not presume that either the superintendent or his deputy was acting or would act with bad faith.

The decree of the Circuit Court is affirmed.

Affirmed.

McBride, C. J., and Burnett and Rand, JJ., concur.