*1 517 Harry Shaffner, Eugene Bank, J. Logrbrink, Appellant, M. State Missouri; Finance State mmissioner Co Harry Deputy Special Finance Kay, H. Commissioner Property Charge Liquidation Affairs, Respondents. Eugene W. 2d 265. Bank, 209 S. State City Opinion Appeals. March Kansas delivered Court Herbert W. appellant. Ziercher for *2 Haley
Sam S. respondents. BOYER, action,‘as owner C. Plaintiff of two judgment notes issued him, sought the bank to effect that pro he was entitled rata other to share with alleged surplus holders in in the hands of the commissioner finanpe charge payment. after the of all superior jury-waived trial, to said In a court found notes. issues in favor of dis- defendants and duly missed petition. judgment From that has n . appealed. pleadings, From admissions, parties stipulation and a n case, appears Eugene Bank State was declared *3 by 13, 1940, insolvent a resolution of its board of directors March and thereupon charge that the state of commissioner of took finance bank; affairs of said at the of plaintiff that time was the owner capital certain "B” 63 in his name $1825; note No. the sum of appeared registered on the books of bank of said as the holder note and as a depositor; also that said note was issued under provisions 1, 39, Art. Chapter 1939; of R. September S. Mo. that on 6, 1940, special deputy charge commissioner in bank re- note, ceived a claim .from plaintiff based on which' rejected claim he ground approve refused to on the for filing July 1940, had expired 27, 7, claims and on September 1940, plaintiff by letter; he so notified that no action was instituted by plaintiff against finance, deputy, commissioner of or re- his specting April said claim until 2,1943; presentation that notice proof duly published newspaper according claims was in a requirements law; said provided notice the last date for presentation proofs July 27, 1940; would be did not present a on said proof claim or make thereof on or before said „ date. n by It appears stipulation parties further of the that at the time the closed, bank was T. "W. the registered Bond was holder “B” cap- $1925, ital note No. 67 the sum his name appeared depositor; as a at presentation the time of the of this cause was the owner holder but that no claim was presented against the bank on account of said note or made thereof, parties any against and that none of the instituted action special deputy respecting or commissioner his the above described 2,1943. April note until counts, in two petition respectively this case is based question. alleges Plaintiff ownership
the two his notes; *4 creditors; postage prepaid; that notice was mailed to with day provided that said notice last claims would July 27, alleged newspaper publication 1940. It is also a that of said duly made; notice was that did file a not July 27, 1940, bank on or before the date in said notice as day being filing claims, the last fox»' axxdthat he is therefore barred 7928 and R. allegation Sections S. Mo. 1939. The peti- in the surplus tion that there is a special the haxxdsof the deputy com- missioner denied. had previous upoxx
Plaintiff filed a April 2, suit the same notes on 1943, which Judge Hollingsworth sitting was tried before then in the County Cole At Circuit Court. the close of the evidence in that case judge the trial finding announced his the notice that to file a claim lawfully under the statute given. requested had beexx Plaintiff that voluntary he be allowed to a judgment take nonsuit before was entered. request granted was dismissed, and the presexxt cause was and the August case By agreement was filed 1944. parties a traxx- script previous evidence in the case was to be used as evidence in to introduce ease, subject objections and the proper evidence. additional present case, plaintiff stated Testifying in his own behalf deputy
that he never at notice from a time received mailed did that he receive charge finance commissioner in but Cor- liquidator Deposit a notice from for the Federal Insurance claim on his poration; from filled out his someone the FDIC Mr. deposit; registered he from only mail which received regarding Hutchinson, deputy commissioner, was a notice finance know- did not paid. his son’s loan which He that he he further stated know why he did not did file a claim on not he belonged category filed; which claims had to be gave thought note; never the “B” filling a out claim on probably “I hurry in a did not have two minutes more spare.” quarter a of a mile He further he lived about testified that Eugene, from a box where he received his mail and that he had lock postoffice depos- at the a it; and no one else had that he was access itor deposit ledger; and his name on recall that he did not September 6, respecting visit Mr. Hutchinson a claim, in- receiving but he did from Mr. Hutchinson recall letter forming him recognize that he he no would not took respecting action April the claim until previous trial,
In testified that the represented money put into the bank when the of finance commissioner wrote the down; common stock the total issue said notes $10,000, and that he owned both referred notes to.
On resigned cross-examination he he stated that as an officer of the bank in 1939; that vice-president he been from 1933 until his resignation; that he did not receive notice from Hutchinson Leslie regarding and did not know 'whether one had been him; mailed to did money claim for he de- had on posit and stated that did notice, happened drop not receive a but say being heard someone the depositors were paid; he had no argument heated matter, with Mr. Hutchinson about the nor did he discuss the “B” *5 father,
his B. Hutchinson, Leslie special deputy who was the commis- sioner for bank; the that he had worked with his father liquidation of the during ninety days bank the liquida- first of said tion; that secretary, Hollenbeck, his Mrs. and a Miss Randall were engaged bank; in supervised the work at the the prepara- printed'
tion óf a bank; notice to the notices were creditors of the that printed Vienna, in printed and were identical with notice newspaper; they that mailed at envelope were enclosed in an Eugene plaintiff to the and to T. W. Bond on third or fourth April; them; that he checked the that envelopes and cross-checked every person got who had a notice; plaintiff’s $6.97; deposit checking in 'his his account filed a claim n amount on April 5, against and it note; was offset that after the plaintiff bánlr closed in times; April four or that on bank five plaintiff 7,' 6 of á father conversation at bank concern- ing “B” “Well, ánd preference said: with no we * * * get anything get won’t out of it. If then preferred can’t I I all”; won’t file at “B” kept that the record of the holders notes; in á at the bank and b'opk notice was holders of sent notes”; that “we checked names of the holders of the “B” four or fivé holders personally notes filed their claims. “I envelopes containing checked the’ notice claim- that went out to the ants.” Both and Mr. Bond were listed as deposits. both filed claims for the amount of their Hollenbeck testified that she in Gladys assisted bank; immediately closing she was there after up bank and July; they to the middle of printed received the notices to printer, from the creditors checked the list of creditors of envelopes 'the them, addressed each inserted the notices people and mailed them to all who had claims the bank according inventory reported by to the list and State; appeared inventory name of W. Bond T. on the and that she mailed Bond, a notice to Mr. postage, and plaintiff; first-class one to the that Harold Hutchinson and' one of girls from cheeked FDIC her; envelopes the notices with that went to Mr. Bond and printed notices to come in and were file their claims before July 27, and a blank claim; which to file the the notice- published was the same as that in the paper; helped that she to insert envelopes, helped stamp the notices in the the envelopes and carried postoffiee. them When if j)ersonal asked she had recollec inserting envelope tion of the notice in an Logr addressed to J. M. say “I bfink, replied: couldn’t as to envelope partic she one every envelope ular but had a placed it; put we sent everyone deposit. envelopes put who had I notices myself. mail We sent people appeared notices to the who to have * * # against the bank. lists were checked and re- envelopes cheeked before went they out the bank and were * * * postoffice. They then carried to the were all checked and re checlced, stamped again ahd they sealed checked before left the foregoing All of the were mailed.” The ‘bank. notices is the sub
523 under took the cause all the court stance of evidence in the ease. The ' granted briefs. time for the advisement there plaintiff for According of counsel opening statement to given not First, that notice just are two issues in the ease. if second, that even by plaintiff required by statute; mail- as ease, of this by given, mail had been under the circumstances notice special deputy plaintiff required a was not to file claim with account of and on commissioner due to the character the notes in them for the manner retirement provision certain contained liquidation. presented are points are the the event of These is first contended appeal our It the brief on this consideration. find notice was not authorized to
that under evidence the court proof burden of creditors; had been mailed to that the claims that the burden was on the establish such fact and defendants to by plea upon To of limitation relied not sustained. maintain the' defendants, proof it is no was on doubt true burden been' prove defendants to show lawful notice their had given Springs to creditors. National Bank v. First of Colorado Holt, (2d) Killpack Bank, W. W. 229; Baring 158 S. State S. 61 263; (2d) 260, Savings Howard, Farm 224 & Home & Loan Assn. v. App. 30 Mo. S. W.
Respondents do contend that not law is otherwise than that' proof, stated in reference to the burden of but maintain proof obligation ample every part liquidator meet by had required mailed notices to all show creditors as respondents We think are the statute. contention and fully justifies upon that the evidence conclusion of the trial court by only by this issue as shown the decree. The evidence offered support allegation petition of his no notice was testimony ever mailed to creditors was his he did not receive by mail and that he did not notice know whether such had receiving mailed or not. He admitted mail been other addressed to liquidator, him and in view of positive testimony of de- judge witnesses notice was fendants’ mailed to the trial ample reason to the issue resolve as he did. He was not testimony plaintiff. believe point urged appellant ease which is The next is that the' finding in not that the claim court erred of the holder of a being the claims of general subordinate to and other creditors, presented need not within four months under Sec. (‘B” plaintiff’s argued arising R. It is S. Mo. 1939. out of category not upon notes was within of claims section, provisions made under the must be that it was unnecessary position to file claim. This based statutory authority under which such notes are issued cer in the themselves for manner of payment *7 of capital provides issuance notes, (D) and Sec. 7907 capital be, “such and notes shall at of issuance shall the time their subject all to rank and remain, times thereafter subordinate in prior or payment obligations the all of of of and such the debts company issued, except trust heretofore certificates of indebtedness security and such bank or company may, protection trust for the and of upon the capital notes, agree upon holders of such such restriction the the payment dividends, distribution or of on stock as its may Board Paragraph of 14 of Directors decide.” the provides liquidation, under part consideration in “in of case voluntary whether involuntary, depositors or all and other creditors of the (except Bank the owners or of holders indebtedness subordi Capital payment nated to the “A” “B” Capital Notes Notes as to of principal interest) paid shall be to be in full entitled before any payment principal on shall be made on account of or interest of “B” owing Capital Note. full of all to payment After in sums such “A” creditors, registered and to the holders registered Capital Notes, Capital holders Notes at outstanding ratably paid according shall be entitled to be aggregate principal Capital amount of held *8 notify persons sioner shall may against all who have claims the present to proof same to him and thereof make within four months notice, from the date of the specify and shall such notice last in day presenting proofs, for in specified such and “after the such date day presenting as the for of last claims the commissioner power accept any provides shall have no to Sec. 7932 claim.” required approve the “when time within the commissioner is reject expired any has and at within six there- claims time months after, duly claimant whose has been filed and been has not by may approved the and an action commissioner institute maintain against corporation. thereon such No action shall be maintained against corporation possession such while in the commissioner is brought period its affairs and within of limi- business unless the specified proceedings tation in this section. In all instituted actions against corporation possession such while in the commissioner is business, required property allege its and the shall and prove duly, that the claim which the action is instituted was days sixty and that elapsed expiration filed have since the of time filing said and for claims that said claim has not been approved.” case, From admitted facts did not required, on with the commissioner either note within nor did period institute within prescribed. action limitation petition also that the in this case It is observed does not contain allegations which are it contain in should the statute last quoted. above Company Exchange
In the case of Commerce Trust Farmers Bank Gallatin, 61 S. W. sought recovery 332 Mo. liquidator. No of trust funds in the hands claim was filed with filing commissioner of finance within the time required by nor was filed until after the time claims suit the statute its contended filing expired. Plaintiff for the of suits had relating of the statute by provisions was not limited to recover fund a trust represented filing since amount claimed of claims the insolvent of a creditor belonging plaintiff and a claim was not adopted and commissioner opinion prepared an able bank. The things, statute holds Banc, among other the court en and ex complete provides of Finance relating Department disposition banks of insolvent scheme clusive of the sections of various After an extended review their assets. containing the question, including the ones similar statute 987 of the State page 7928 and provisions as sections same statutory these clear that said: “It seems to -us .Report the court -require prompt contemplate and were intended provisions character of whatever disposition of presentation and cases, where, as in this and similar against an at least insolvent in which property but one possession specific the claim is not for only by an recover practically can claimant to recover seeks liquidating hands paid out of the assets award to be bank holds title. Until commissioner, including those to which the can the bank’s assets presented and determined such claims are .all It ruled up.” wound and its affairs properly not be distributed ‘‘ ’’ plain situation of word creditors included claimants plaintiff was not en case, under the facts in the case tiff in that following appellate courts titled to recover. Later decisions of our Company con Trust case have pronouncements in the Commerce .the sistently limiting time for claims and ruled that statute what applies to all-claims bringing actions insolvent banks recovery character, specific personal except ever actions for the equity property, applies proceedings to reach assets *9 Ogan liquidating v. Farmers and Merchants in the hands of officers. Neathery Chillicothe, 11, 17, (2d) 438, 90 W. App. Bank of 231 Mo. S. 87, (2d) 83; Co., App. 229 Mo. 75 S. First v. Trust W. Wells-Hine Holt, Springs (2d) v. S. W. National Bank of Colorado 158 229. Co., v. 298 Bowersock Mills & Co. Citizens Trust S. W. Power early holding non-compliance one of the cases with the was bringing statutory period suit within the statute recovery. appellant The contention that because his notes barred subject the'prior payment rank-and were subordinate in debts unnecessary bring bank to file a obligations of the was claim or statutory period appears to be without suit within the substantial appears cited. But it in view of the decisions heretofore to be merit says, true, appellant directly that there is no Missouri case as deciding of a note holder. .point the status point respondent. It is Federal Deposit There is a case cited Department of Financial Corporation Institutions, Insurance 44 appears analogous to rule E. N. situation
527 creditor, was not adversely appellant contention That case similar to that of stockholder. but entitled to status prin The of Indiana en banc. Appellate was decided Court Deposit Insurance the Federal cipal contest in the was between case The FDIC Corporation. Corporation Finance and the Reconstruction subsequent had accrued seeking recovery was of interest which the-interest insolvency This was adverse to of the bank. by the debenture to it RFC, an income issued which was the owner of money on a obtained promising an amount of repay provided of the debenture paragraph date with interest. One full paid should be upon liquidation other creditors depositors and principal debenture. The payment made on the before RFC, owner as the question considered and decided was whether l. opinipn, .The c. debenture, a creditor or stockholder. position creditor generally is conceded states: “It other and mutually of each and stockholder are exclusive one by virtue of the same logically cannot and stockholder be a creditor ’’ fund. It. was decided respect the same instrument created a issuing it and debtor and 'a of the bank debenture was debt opinion and the RFC. The the bank relationship creditor between “A” in debenture further states: fact that instant “The bank to obligations its case is subordinate mean that it evidences does not stock and others of its creditors ' holders’status than a debt.” rather conclusion In here is that the foregoing view the authorities “B” capital of the bank; that against the claim present his no notice to received deputy special nor of. finance his the commissioner neither his present him notice mailed to to be time mailed caused 1939; that by 7928, R. S. Mo. Sec. bailk as against claim said manner in which designated the bank authority of law the under by liquidation, as shown might in the event be retired said notes the notes. the terms of part were a capital notes alleges that further said Plaintiff which, by provisions bank totaling $10,000, issued series junior and subordinate to Missouri, notes were said and the laws of obligations to the stockholders except the obligations of said bank all all liquidation of said bank bank; that in course of said notes of said obligations of obligations superior to the in the hands of the fully there remains paid, have been and that among distribution, pro rata the holders commissioner finance money the amount of notes, of “B” a considerable sum of from which is entitled plaintiff, unknown to the but which is as holder-of said notes. pro to his rata share - day -, alleges on the Plaintiff further charge of finance special deputy he did deliver to the commissioner against the bank of the affairs and of said rejected special on said note No. claim was said commissipner deputy approve who refused to so filed. question puts The answer in issue the as whether notice to file properly given alleges that on March claims special deputy persons, including plain- commissioner notified tiff, him present who the bank to same to and make proper proof thereof within four from the date of months
Notes
him; with that he did know not Mrs. Hollenbeck. Plaintiff introduced a letter which he had received from Mr. Hutchinson, September 7, 1940, dated rejecting his claim heretofore, and refusing to allow it for the reason stated. Photostatic copies of the transcript. notes are shown in the Harold S. Hutchinson testified as a witness on behalf of defendants at the trial attorney and stated that he was with associated first
provision tain of the statute liquidation. event of All references sections in refer to the otherwise Revised unless Statutes of Missouri Special 7906, authorizing the dicated. reference is made to Sec.
Notes them, from respectively, remaining all the assets the Bank.” Relying upon provisions, argues appellant these counsel for question inasmuch as the notes in are made subordinate to debts obligations bank, bearing “B” capital these notes have no since the commissioner does not include them among the in If creditors distribution. are there assets remain- ing after the completely commissioner has distributed to the claim- ants, the holders of these notes would payment receive in the sam'e manner as would Appellant stockholders. therefore likens th.e situation a required to that stockholder who would not be. a claim. reg- Counsel further in states the brief that “the notes were istered on the books the bank in the same manner as stock and question resolves itself to whether a of a “B” Capital holder Note is a creditor and within meaning claimant of the Revised Statutes Missouri, .of Section 7928.” Reference is made to Commerce Trust Exchange Co. Bank Gallatin, Farmers 332 Mo. 61 W. S. opinion gives The in that case extended consideration meaning of the word “creditors” as referred to in various sections Among the statute. “Anyone the definitions cited is: who has a require obligation fulfillment or contract for the money.” creditor, Another such definition is: “A in payment its legal strict sense, is voluntarily gives one who trusts or credit money another for but, general property, other its more or ex- 525' sense, right by a tensive one who has law demand and recover * * * money another a sum of account whatever. susceptible plain- word is of latitudinous construction.” Counsel says further far appellant tiff so as has been able to determine courts have not ruled on whether the holder of a given. under our a issued statutes is creditor within the definitions question We think the case rules the that under evidence pending in the held and a case should to be a creditor liquidation. By express claimant the bank in terms of the notes question received, promised payee pay value designated sums specified notes at time and at stated They rate interest. constituted borrower and contracts between lender, unquestionably relationship established the of debtor and Being creditor, creditor. plaintif if recognized desired to be as claimant he was to file a claim within the time the notice to provides part creditors. Sec. 7928 that the commis-
status of that of á as the owner to file of claim creditor; failure and that of his with because manner suit in the and within commissioner and.to institute quoted, the statute heretofore prescribed by the sections Therefore, judgment case. was not entitled to recover the Commissioner the trial so recom- court should be affirmed Sperry, C., mends. concurs. Boyer, C., opinion adopted PER foregoing CURIAM. The is affirmed. All judgment concur. opinion as of the court. City Public Respondent, Daniel v. Kansas Service Baldwin, W. Appellant. 2d 115. S. W. Company, Opinion City March Appeals. delivered Kansas Court of