6 Kan. App. 835 | Kan. Ct. App. | 1897
The defendant C. E. Wightman, for a number of years, had conducted a bank, known as the Bank of Tribune, which was owned entirely by him. Being insolvent, he appeared before the Bank Commissioner at To.peka on September 23, 1896, and stated that he had come for the purpose of surrendering to the Commissioner the possession of the Bank, and that he desired that the Commissioner should go immediately to Tribune and take actual and personal possession of the Bank and all of its assets. Wight-man then gave to the Commissioner a statement of the financial condition of the Bank, showing its insolvency, and, as the Commissioner testified, delivered and surrendered possession of said Bank to the latter so far as it was possible for him to do. On September 24, and while Wightman was in Topeka conferring with the Commissioner, the plaintiff in error brought an action in the District Court of Greeley County to recover $594.06, which he alleged he had on deposit in the Bank. An attachment order was issued at the commencement of the action, and the sheriff purported to levy the same at fifteen minutes past three o'clock on the afternoon of the same day. The sheriff's return on this order shows that at the time named he executed the order by going to the place where certain personal property of the defendant was found — naming among other articles a burglar-proof
The return of the sheriff as to the inventory and appraisement of the property is regular in all respects except that it shows an appraisement of the safe and its contents, when, as a matter of fact, the safe had not been and could not be opened by the sheriff when the appraisement was made. The appraisement did not state the nature of the contents of the safe, and both were appraised together at seven hundred dollars. The'appraisement is dated September 28, and it was filed, together with the order of attachment, on October 3. The sheriff and appraisers obtained their information as to the contents of the safe from Wight-man.
Before the attachment was levied, the attorney for the plaintiff had knowledge of the fact that Wightman had gone to Topeka to turn the Bank over to the Commissioner, but the evidence does not show whether or not the plaintiff had such knowledge. Wightman returned to Tribune on the morning of September 25, and the Commissioner arrived there at noon the same day. The sheriff or his deputy had remained in charge of the attached property and in control of all the property of the Bank from the time the levy was made, and the Commissioner was unable to take actual possession of the same.
Before starting for Topeka, Wightman left the following notice with a person in Tribune :
“Tribune, Kan., September 23, 1896.
“This bank has been placed in the hands of the Bank Commissioner, who will take charge, probably, Friday. I will return with him.
C. E. Wightman.”
This notice was posted on the door of the Bank soon
AJ the request of the Bank Commissioner, the Attorney General, on October 2, 1896, instituted an action in the District Court of Greeley County, in the name of the State on relation of the Attorney General, as plaintiff, against C. E. Wightman, as the owner of the Bank of Tribune, for the purpose of procuring the appointment of a receiver of the Bank and for the winding up of its affairs under the provisions of the Banking Law. On October 5, the plaintiff and four other attaching creditors jointly applied to the judge of the District Court, at chambers, for the appointment of a receiver to take charge of the attached property, and on the same day the State of Kansas, by the Attorney General, presented to said judge a motion for the discharge of the several attachments which had been levied upon the bank property. • These motions were considered together, and the evidence relating thereto was presented on the same day. The motion to discharge the attachment set forth substantially that no sufficient levy of any of the writs of attachment had been made; that none of the writs had been levied on the 25th day of September, when the Bank Commissioner demanded possession of the property ; that all of the property attached was owned by the defendant Wightman in connection with the Bank
The foregoing facts were developed on the hearing, and the additional fact was developed that the Bank of Tribune had never obtained authority from the banking department'to do business, although it had been making reports regularly for two or three years. The judge discharged the attachments and ordered the sheriff to turn over the property to C. H. Adams, whom he then and there appointed receiver in the case brought by the Attorney General. Plaintiff in error excepted to the action of the judge, and, by due and timely proceedings, the order discharging the attachment is before us for review.
It is claimed on the part of the State that the case-made is insufficient because it fails to show that it contains all the evidence that was introduced on the hearing of the motion. While it is true that no single specific statement to this effect is made, we think the case-made shows that all the evidence is contained therein. It is also claimed that the case-made is insufficient because it does not contain the attachment undertaking. This is not material, as we must presume that the clerk of the court complied with the law in respect to the issuance of the order of attachment. The appraisement seems to be regular except as to the contents of the safe, and it is not important that it was not completed until several days after the levy was made.
I. As to the first question, we think it could not be claimed by any one that the Bank Commissioner was given actual personal possession of the property by virtue of the attempted delivery thereof made by Wightman in the city of Topeka. Nor do we see how it could be maintained that there was a constructive delivery of the bank property at that time and place. In fact, the Attorney General does not make this contention in his brief. We think that the words “ take charge,” as used in section 26 of chapter 43, Laws of 1891, are to be understood in the ordinary sense, that is, that the Commissioner shall take actual charge of the bank by going to the institution and there assuming'control. We are strengthened in this view by reason of the fact that the Banking Law of 1897, which repeals said chapter 43, makes it the duty of the Commissioner immediately to take charge of a bank when it shall appear to be insolvent, and upon taking charge to ascertain as soon as possible, by thorough examination into its affairs, its actual condition, and, if thus convinced that such bank cannot resume business or liquidate its indebtedness to the satisfaction of all its creditors, to report the fact of its insolvency to the Attorney General, who shall thereupon immediately institute the proper proceedings for the appointment of a receiver. It is evident that “take charge” and “taking charge,” as used in this law, have the meaning we have above indicated, as it would be impossible for the Bank Commissioner to examine into the affairs of an insolvent bank without having control of its books and prop
It is contended by the Attorney General that, under the Banking Law of 1891, the property in controversy was not subject to attachment at the instance of the Bank's creditors, and that the general attachment laws are suspended whenever the same are inconsistent, or in conflict with, the said Act. It will be proper to bear in mind that this Bank was not authorized to do business, and that any general doctrine as to public policy in respect to authorized banks would not be applicable to the Bank in question. Hence we think the decision of the Supreme Court of California in Crane v. Pacific Bank (106 Cal. 64, 39 Pac. Rep. 215), which is cited by the Attorney General, is not applicable to this case.. In view of the fact that the last Banking Act provides that the posting of the notice above set forth shall operate as a bar to attachment proceedings, the conclusion seems proper that the Legislature did not hold that considerations of public policy under the old law would be sufficient to bar attachment proceedings, and therefore the old law was amended in that respect. The Supreme Court of Nebraska, in the case of Arnold v. Weimer (40 Neb. 216, 58 N. W. Rep. 709), holds that the property .of an insolvent bank, prior to the ap
Again, it is doubtful if the Bank of Tribune came within the terms of section 26 of chapter 43, Laws of 1891, which provides for the appointment of a receiver for an insolvent bank in an action by the Attorney General. Section 17 of said chapter evidently attempted to make it unlawful to conduct a banking business without having procured authority from the Bank Commissioner to do so, but the section is incomplete and makes it unlawful to conduct such a business unless reports are made to the Commissioner. It also provides that the Commissioner shall make examinations of banks and, if they are found in proper condition, he shall issue a certificate of authority to do a banking business. It is not a strained construction of the provisions of said chapter 43 to hold that it contemplates that banks which are brought within the provisions thereof by the examination and the certificate of authority are such as can be taken charge of by the Commissioner and for which a receiver can be appointed under this law. It is anomalous to speak of a receiver being appointed, at the suit of the State, for the property of an individual; but if such an individual is a banker, of course a receiver may be appointed under a law providing therefor. But if he was not authorized to conduct a bank, would it be within the purview.of the law to
II. The record shows that the sheriff complied with the provisions of the statutes in making the levy, except as to the contents'of the safe. He was in actual possession of the office furniture and of the safe on September 28, when the appraisement was completed. The Attorney General claims that this levy is invalid for the reason that manual possession by the officer is essential to a valid levy, and that no such possession had been taken of the contents of the safe. The courts have generally held that the test of a valid attachment levy is this : Were the acts of the officer in making the levy such as would subject him to an action for trespass but for the protection of the process? The officer in attaching personal property must reduce it to actual possession so far as, under the circumstances, can be done. What is such an actual possession, must depend upon the nature and situation of the property. It .has been repeatedly held by the courts that personal property may be attached without the officer touching it; but he must obtain actual control of the property levied upon.
In Lyeth v. Griffis (44 Kan. 161), the court says, " The rule, that the first duty of an officer holding a
While we think it was not proper to have made the return show an appraisement of the contents of the unopened safe, yet it amounts to an assertion on his part of exclusive custody of the attached property, including the contents of the safe. Holding, as we do, the view that the levy substantially complied with the law and that it gave the sheriff custody and control over the property seized, it follows that the order discharging the attachment was erroneous, and that the receiver appointed by the trial judge in the action brought by the Attorney General has no authority over the attached property. The action of the sheriff in making an incomplete appraisement can be corrected by the issuing of an alias order of attachment, it being evident that plaintiff in error ought not to lose his rights by reason of the incompleteness of the appraisement.
The order of the trial judge will be reversed, and the case remanded with instruction to the trial court, or the judge thereof, to order the sheriff to open the safe and complete the appraisement, upon an alias order of attachment; and for further proper proceedings.