59 P. 929 | Idaho | 1900
Lead Opinion
This action was commenced by the First National Bank of Pocatello, a corporation, plaintiff, against C. Bunting & Co., bankers, a corporation, defendant, to recover a debt due from the defendant to the plaintiff. The defendant corporation being insolvent, C. E. Thum was appointed the court’s receiver, to take charge of the assets of said defendant corporation, which, after qualifying, he proceeded to do. The state of Idaho intervened, alleging that said receiver took charge of, and was in possession, as receiver, of, certain moneys owned by the state, and withheld and refused to pay same to the state, and demanded an order directing said receiver to pay over to the state treasurer the said moneys of the state before distribution among the creditors of the said insolvent. The district court decided the contention againsit the state, and the state appealed to this court. Upon said-appeal we held that public money deposited by a public officer in a bank becomes a trust fund, and not part of the estate of the bank, and in case of the insolvency of the bank its receiver must treat such' fund as the property of the true owner, and that creditors of such bank were not to share pro rata in public money deposited in such bank. (See State v. Thum, 6 Idaho, 323, 55 Pac. 858.) After the said decision, the respondents here, Bingham county, Custer county, and Fremont county, each intervened in this action, claiming, each for itself,, that public money belonging to it was deposited with the defendant corporation, and thence came into the hands of said receiver. Upon a hearing of said petitions in intervention, the court rendered and made its several jugments, ordering and directing said receiver to pay each of said respondent counties the public moneys belonging to each which were deposited with said bank as follows, to wit: To Custer county, the sum of $12,241.02; to Bingham county, the sum of $35,647.86; to Fremont county, the sum of $3,627.67; and to Bingham county, on relation of E. P. Coltman, sheriff, etc., the sum of $1,326.26. Each of said judgments directed said receiver to pay said amounts, respectively, to said counties forthwith; but, instead of doing so, said receiver, without regard to said judgment, and without regard to the decision of this court in State v. Thum, cited
We feel it unnecessary to add anything to what was said in State v. Thum, so far as the main contention before us is concerned. But it is contended by the receiver that, inasmuch as the treasurer of Bingham county received a dividend or pro rata payment, the same as an ordinary creditor, from the receiver, it is estopped to claim that the public money which it had in said bank is a trust fund. To this we say that such act of the treasurer does not estop the county from claiming "such money as a trust fund. By receiving such pro rata payment, the treasurer does not affect the rights of the county to any greater extent than he does by assuming to make a general deposit for the purpose of transferring the title of the fund from his principal without its consent, and in violation of law. By neither of said acts can a county official create the relation of debtor and creditor between the public and the bank. Hence, the public money of Bingham county deposited in said bank was a trust fund, and so remained after the receivership.
We now come to a question which is not discussed in the briefs, but apparent upon the record, and which we feel it our duty to notice; and that is the fact that these four appeals are prosecuted by the receiver without an order of court permitting him to do so. It should be borne in mind that this is not an action against the receiver, but that in this action the receiver was appointed. Then the receiver has no personal interest in the judgment from which he appeals. It is of no personal interest to the receiver whether he pays the money mentioned in the several judgments to the respondent counties, or whether he pays them to the general creditors. It was his duty to obey the orders of the court appointing him, of which he is only an agent. He had no right to appeal from said orders. The law
Rehearing
We have considered the petition for a rehearing filed herein, and have examined all of the authorities cited therein. We do not think the authorities cited sustain the claim of petitioner. Petitioner cites as follows from 17 Encyclopedia of Pleading and Practice, page 885: “Where a receiver .... contests a suit with leave of court, he is entitled to appeal from a judgment adverse to the interests which he represents”; and refers to the following cases cited as supporting such statement: Becker v. Hoke, 80 Fed. 973, 26 C. C. A. 282; Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. Rep. 570, 39 L. ed. 660; Arnold v. Weimer, 40 Neb. 216, 58 N. W. 709. The text in 17 Encyclopedia of Pleading and Practice, page