Longfellow v. Barnard

59 Neb. 455 | Neb. | 1899

Norval, J.

This cause is on rehearing, the former opinion being reported in 58 Nebr., 612. After a careful consideration of the briefs and arguments of counsel for the respective parties, and an investigation of the questions anew, we have reached the same conclusion announced on the former submission. The only doubt we entertained was with respect to the soundness of the propositions embraced in the first two paragraphs of the syllabus to the prior opinion, and this doubt has been entirely removed by the further investigation and consideration which we have given the case. There is nothing in the prior decisions of this court to which our attention has been challenged which in the least militates against our former holding herein. The case most nearly in point is State v. Commercial State Bank, 28 Nebr., 677, but it is readily distinguishable from the one in hand. In that case the Commercial State Bank was an incorporated institution —a distinct legal entity — while the State Bank of Wahoo was unincorporated, had no legal existence, and was owned by a single individual. In the case reported in 58 Nebr. it was ruled that the rights of the creditors of the bank to its property and assets, so far as essential to meet their demands against the bank, were superior to those of the stockholders or the assignee of an insolvent stockholder. But that case falls far short of being a precedent for holding that the assets of an unincorporated bank, owned by a single person, is a trust fund for the payment of the obligations against the bank to the exclusion of the other creditors of said owner, and that he may not apply such assets to pay or secure the claims of any of his creditors. The rule relative' to the assets of an unincorporated bank owned by one person was correctly stated in the opinion of Sullivan, J., and will be adhered to. See In re Vetterlein, 44 Fed. Rep., 57; In re Williams, 3 Woods [U. S.], 493. The judgment of reversal wiil stand.

Reversed.