State Banking Board v. Pilcher

REPORTER 256 SOUTHWESTERN 996 banking &wkey;>15Specialexcep- 6. Banks and — necessary tions held allegations as to failure to make PIL BOARD et al. v. BANKING STATE filing bringing toas of claims and 9010.)* (No. CHER. spit within time. Appeals Dallas. (Court Texas. of Civil Assuming 463-465, pro- Rev. St. arts. Appellants’ Motion On Nov. 1923. viding preferred that holders of claims must 1923.) Findings Fact, Dec. days Additional present same within 90 after first notice given by commissioner insurance and bank- &wkey;>!5 banking on claim 1. and Banks —Action ing rejected and that suits on claims must be brought may (cid:127)against be insolvent brought rejection, six within months after re- county bank domiciled. where quire presentation rejected suing allege one on a claim to days against re- within insolvent and suit within six on claim Action may rejection, banking allege by be jected brought months after failure to so commissioner of brought county in which must be attention the trial of the court district by brought special exceptions, located, court be view of rule need not and bank was county Supreme of the rules for district commission- and courts. because in the Court department. the executive is an officer of er <@=>910 Appeal pre- and error 7. —Reasonable sumptions indulged sufficiency in favor of <&wkey;l5 banking on claim 2. Banks and —Action petition on review of refusal sustain de- brought against property insolvent murrer. county in bank located. against Where commis- action , bank, against An action insolvent' commis- sioner of insurance and others to establish as Attorney banking, Gen- sioner of insurance and eral, by paid secured and to be treasurer, composing and the slate state depositors’ guaranty fund, out of the against a claim general deposit, banking board, to establish as a allege an insolvent bank did not when by paid depositors’ secured guaranty and to be out of the brought, claim was filed and the suit on re- fund, against- bank, claim view of the refusal of the lower to sus- brought county, properly was located claim where the bank tain a demurrer to-the omission, plaintiff resided, against presumed it will be claim banking it was commissioner of brought was filed suit within re- the time proceeding against in effect a mandamus an of- quired Rev. St. arts. 463-465. gov- ficer of the executive only by cognizable Pleading &wkey;>205(2) ernment the district 8. of cause court 1830, —Statement county, amendable, good against action, under Rev. St. art. of Travis 20. subd. murrer. action, A defective statement of a cause of <&wkey;i9i against (2) banking 3. States —Action amendable, good against if murrer. against others held not suit requiring state consent. banking <&wkey;45Allegationthat 9. Banks and — bank, against An action insolvent commis- noninterest-bearing, sufficient. claim banking, others, sioner of insurance and ¿gainst bank, com- composing banking board, In an insolvent action state to establish as. others, banking, general deposit, paid missioner of insurance and and secured be a claim to' general deposit, fund, to -establish out of the depositors’ against against bank, and fund, was not in effect a suit bank, allegations against a claim requiring allegation of con- sum and had on a certain sent of the state to be sued. certain date no interest be- on and after a <&wkey;!5 —Limitations 4. Banks etc., directly indirectly plaintiff, ing paid against filing insolvent bank and claims non- that claim held sufficient statement rejected claims matters suits on defense. against general interest-bearing, as demurrer. 463--165,providing Rev. hold- St. arts. <&wkey;l05l(3) Appeal error 10. —Erroneous preferred against ers must claims insolvent harmless. heid of evidence admission days present same within after the the best Admission of evidence given of in- first notice parol harm- rule was evidence rejected violation of the banking, surance claims must be and that suits pleadings less, mitted. appellants ad- their where brought six within months after facts in to be the existence questions effect rejection, present of limitations sought proved, and other evidence necessary defense and be are matters of objection tending establish rejected alleged affirmatively admitted without in an action on facts, 62a for the under rule those Civil Court claim. Appeals. <&wkey;>180(6),182(5)— 5. Limitation of actions <&wkey;45 against urged repose be Statutes of must as matter Banks —Rule against corpora- of defense. insolvent interest on inapplicable. tion held available, repose, in Statutes of order to be against specifically commis- insolvent directed law action unless otherwise others, them, urged creating insurance and as a matter sioner of .must defense, general deposit, demurrer when the establish as a appears pleadings, limitation or, face out of the to. against not, appropriate pleas; the rule law that a claim when otherwise shall not run on a must be considered as hav- interest the benefits thereof inapplicable, corporation ing been waived. Digests <g^oFor Key-Numbered topic in all Indexes other cases see KEY-NUMBER granted February *Writ error y. STATE BANKING BOARD PILCHER (256 3.W.) 463-465, closed interest claimed commissioner of insurance and Rev. St. arts. rejection, of banking date of since the allowance 27, 1921, from interest to December account of its oh in case would have the effect .such insolvency, being liquidated and now general decrease the assets of the bank. him; (appellee) he verified filed his banking &wkey;>l5Judgments claim with the commissioner insurance of and Banks — against properly banking banking offi- and entered defendants and the state board property. cial unsecured, noninterest-bearing deposit; an against In action insolvent commis- rejected. Appellee and that said claim was Attorney banking, sioner of insurance and Gen- prayed judgment establishing claim eral, treasurer, a and state establish as against Guaranty First said Bank as State general deposit, to be out and unsecured, noninterest-bearing an and claim depositors’ guaranty fund, against a of the judgment against for a like the state rendering a the money court not err thereof, only board and the in their members against the three last-named capacity. capacities against official defendants in their official authority objection Chapman court extended answer J. L. pay- establishment claim and appellee’s petition direction of its of: consists liquidation ment in due course out of of the general jurisdic- First. A demurrer to the bank. ground tion of the court on the this is against a banking &wkey;»l5Giving general mandamus him an suit officer 13. Banks and — government, the executive credit to holder of certificate held preference. cognizable by Supreme is, therefore, and holding deposit, Where one certificate of only. Court trouble, upon hearing that bank was in financial plea privilege A Second. to be sued went to the and surrendered his certifi- Tex., county, ground Travis based general depositor, cate received credit as and proceeding this is effect mandamus entitling protection him thus of the against him officer an executive .de- depositors’ guaranty fund, then the bank partment government, is, there- and having funds with which the could certificate cognizable fore, by the Trav- paid, district have been there was no violation Rev. ground county. St. art. there be- is preference ing doing or the of an act with Third. A demurrer abatement prevent appropriation the view to of the ground against this is a suit prescribed assets of the bank in the manner Texas, and no consent state St. Rev. arts. 518-574. alleged. sued is general Fourth. A demurrer. Appeal Court, Grayson District Coun- general Fifth. A denial. ty; Judge. Hare, Silas plaintiff Sixth. A denial that is a against L. First Suit P. Pilcher depositor plaintiff bank. Guaranty State Collinsville plea plaintiff Seventh. A effect that others, Judgment composing Banking Board. State interest-bearing was owner anof unmatured plaintiff, for' defendants certificate theretofore peal. Affirmed. Bank; Guaranty him the First State prior December, 1921, Keeling, Atty. Gen., W. A. Jno. W. maturity deposit, Attys. to the he surrendered said certificate Hawkins, Goodwin Gen., Walace Asst. same con- appellants. give promise him Wood, sideration credit Sherman, appellee. & Wood general depositor; therefor as that at agreement VAUGHAN, time this cer- P. J. This a suit L. First Guaranty tificate of surrendered Pilcher the First State Guaranty Chapman, State Bank was Collinsville, Tex., with- Bank of L. J. pay plaintiff’s claim; funds with which to out Keeling, Attorney that, therefore, General, transaction W. A. rell, did not Ter- O. V. depositor. composing treasurer, him a constitute state state Eighth. plea banking board, A effect that on Decem- establish as a posit, 24, 1921, plaintiff was the ber owner and interest-bearing against holder a claim unmatured Guaranty $6,000. First theretofore State Bank for certificate issued to Appellee, Bank; below, alleged him the the court First last-named date he surrendered corpora- promise Bank of tion, incorporated in consideration Collinsville give it would there- the laws of state said credit operating deposi- general depositor; of Texas and for as that at the time plan; tors’ fund made the bank in- on December said deposited solvent; gen- said bank as a said transac- attempt prefer eral ing, unsecured and noninterest-bear- fraudulent tion $6,000; plaintiff’s the sum that said bank and to secure the same Digests Key-Numbered <§=s>For topic other eases see in all and KEY-NUMBER Indexes REPORTER 256 SOUTHWESTERN .998 overruling Fourth. .The court erred and to Chap- L. defendant J. demurrer of application the the manner assets pe- plaintiff’s is, by law, prescribed man there- allege any facts fore, illegal tition does not and void. presented below, plaintiff filed his claim Appellee, in the court days banking privi- plea insurance and within controverting of from quired of to the affidavit a publication re- the notice Chapman. the first of lege by defendant published privilege Stat- under Revised plea the of The overruled court Complete utes, Statutes of art. appellant Chapman, his to the demurrer of jurisdiction, overruling abatement, in the Fifth. The court erred in and his demurrer Chap- general L. duly J. excepted. demurrer of defendant all which he of peti- plaintiff’s Guaranty man to because said State Bank answered The First allege any general facts by general tion does not denial. demurrer overruled, after within six months suit was filed to this The demurrer rejection excepted. his the commis- of claim the sioner which said banking. by way Attorney General, insurance and Keeling, of W. A. overruling erred the suggested Sixth. court in The court that trial answer to the of Chap- banking L. demurrer J. suit, against of defendant state the the plaintiff’s petition al- man because does board, in members thereof the several noninterest-bearing. lege capacities, respective claim is suit that this was a official their against erred, as will more Seventh. The court state, no consent the fully appear exception 2, in alleged, bill of from No. the state be sued Gwynn permitting tes- jury having M. the E. witness No maintainable. tify, objection defendants, demanded, over the case was been the trial the submitted testimony evidence, judgment best as such was not the court, in rendered which Guaranty against follows: First the favor cent, per $6,000 in- Bank with 6 State “I the certificate have seen the April, thereon from the 1st terest banking department relative commissioner $6,240. 1922, aggregating guar- Also sum the the bank as a under to Collinsville anty shortly to Austin X mailed that certificate Chapman, fund. judgment against L. J. rendered charge and as I after took banking, commissioner against in I hands far know is board the members Guaranty department; State First it shows that the capacities sum, a like official in their Bank Collinsvillewas secured depositors’ payment directing guaranty out of its guaranty fund.” fund; judgment appel- 'to permitting Eighth. erred in the The court duly excepted, and the case before lants objection Gwynn, of defend- witness over error, following assignments of us on the testimony offered is tes- ants that verbal rely upon appellants a reversal timony a in- contents written as to this cause: strument, testify follows: overruling the erred in First. The court jurisdic- Chapman demurrer tion of tion shows J. L. “I the certificate issued seen plaintiff’s peti- banking department court, fund state this because I this under the fund. mailed against on its be an face action shortly charge I Austin after took certificate to Chapman) (J. him E. an officer the exec- know it is now and as far as government utive said, department. It shows hands of the performance Texas, compel state of Collins- Bank of duty act of an which under the laws guaranty fünd.” under the ville was secured per- the state of Texas he is authorized to rendering judg- cognizable by form, Ninth. court erred in is therefore The cent, per plaintiff’s only. Supreme interest on ment for 6 Court Texas judg- April overruling date Second. The court erred ment, plea privilege Chapman, evidence shows that because the defendant J. L. banking, First was closed December was of Collinsville of insurance and be- against this official cause capacity suit his procure now insolvent. order of court com- then and is classify rendering pelling pass court erred Tenth. The him to against is, moneyed judgment Chapman plaintiff, J. L. claim of Revised against capacity, Statutes, cog- in Keeling, Attorney General, W. A. art. official subd. Chapman, J. L. nizable the district court of Travis coun- ty 'only. insurance and commissioner of C. Terrell, treasurer, in overruling state their Third. court erred in official V. The capacities. Chapman, demurrer of defendant J. L. rendering action, plaintiff’s court erred abatement because Eleventh. The judgment against Chapman, be, effect, defendants shows its face . Terrell, respective Texas, Keeling, in their of- suit the state con- directing commanding alleged. capacities, sent sued is ficial BOARD BANKING PILCHER STATE v. (256 3.W.) prohibits plaintiff’s pay preferring them positors’ claim out an insolvent bank from creditors, guaranty fund, securing creditors, doing extent of the act authority application matters view in the itsof assets, prescribed by chapter secured to positors’ claim as establish the Complete to direct title fund and Texas Statutes of liquidation of 1920. due course rendering Sixteenth. bank. court erred judgment rendering establishing plaintiff’s Twelfth. court erred claim as establishing in favor of guaranty fund, plaintiff’s because interest- depositors’ guaranty fund, giving un- and the plaintiff to positor, at contradicted the time credit therefor as a evidence shows that protected plaintiff by secured and the surrendered his unmatured interest- positors’ guaranty fund, deposit in was fraudulent anC time certificate of consid- Statutes, give gen- violation promise of Revised art. 551 eration of him bank the the prohibits bank from on its as a credit therefor books preferring creditors, securing creditors, deposit insolvent, bank eral said was doing act plaintiff with a view that knew that was financial appropriation of pre- its trouble, assets a surrendered his for a by chapter 6, scribed general deposit title Revised Stat- credit as the order to secure utes 1911. by fund. following The facts were rendering established: court Thirteenth. The erred in Appellant Guaranty the First State judgment establishing plaintiff’s claim as a Collinsville, of Collinsville was located by general deposit depositors’ Tex., doing and had been business for about judgment guaranty fund, because said con- years 15 ing at date it was closed as a bank- trary evidence uncon- this: liquidation by institution for the com- at shows that troverted evidence the time missioner of insurance plaintiff interest-bearing surrendered his cer- day December, 27th was 1921; that deposit in consideration tificate engaged farming, and had resided at give promise him credit there- bank present' place of residence between 50 said on its books as a years, Collinsville, 55 near the town of money without insolvent and bank was Grayson county, Tex.; prior being represent pay plaintiff’s claim or to which to closed, said bank organ- had been from its deposit. transacting ization and carrying on a bank- rendering court erred Fourteenth. The ing business, during which time establishing plaintiff’s a judgment claim as depositors; been one its that on the 8th depositors’ deposit general guaranty day appellant July, 1921, appellee deposited with surrender because the $6,000, bank which, on said interest-bearing plaintiff unmatured date, deposit slip he received a as follows: upon deposit credit time certificate Deposit Subject “Certificate of to Check. deposit —Not aas bank books the having Guaranty “The First when said bank time at State Bank been made of Collins- charg- ville. purpose and for was insolvent ing pay- “$6,000.00. fund with Collinsville, July Texas, 8, 1921. upon deposi- a fraud ment therefor deposited “L. P. Pilcher has in this bank $6,000.00 payable void. tors’ to the order of himself on December on return evidence of this The uneontroverted certifi- Fifteenth. properly cate indorsed. No. 647. day 4 Interest De- having cember, that on 24th shown cent, per per annum if left six months. No in- 1921, plaintiff an unma- surrendered time maturity. terest after “[Signed] interest-bearing of de- certificate tured posit Phillips, J. B. Assistant Cashier.” the First issued him theretofore appellee, Pilcher, right That L. P. under in con- Bank of Collinsville give agreement him his contract sideration cerdit depositor, its which he made said $6,000 time its books as withdraw therefor on said sum deposited might so time at time at said he desire expiration months, before surrendered said six was made said for- feiting, doing insolvent, so, knew all to receive in-- trouble, $6,000, terest on sum in financial establishing rendering to receive interest in erred event said amount general depositor plaintiff’s prior was not claim as called for the secured because, received expiration depositors’ guaranty fund, of six from months solvent, deposit slip. Saturday, the con- date time of said On converting interest-bearing during banking hours, cer- tract December appellee general deposit into a Pilcher tificate of had a transaction with said through Statutes, in contravention Revised art. bank’s assistant Complete cashier, Boyd Phillips, Texas said bank then Statutes REPORTER 256 SOUTHWESTERN speci- whereby the claimant doing business, the name of will be drawn fied in the open and claim. deposit deposit time the above surrendered Pilcber place Noninterest-Bearing a him thereof slip Unsecured “Claim for and received . Deposits $6,000 slip in the sum general depositor, follows: undersigned “(1) The certifies day December, 27th a A. D. -was Deposited D. Pilcher. Bank, P. depositor in the Collinsville, Texas, said deposit in 24—1921. Texas, 12— had on Collinsville, being- Cheeks which no interest follows: 617.$6,000 C. directly indirectly by No. D. its C. Duplicate by Phillips.' A. stockholders; officers or $6,000 . Total was in -no manner secured either collateral otherwise; just bonds, liens or that all interest Appellee did not receive offsets, payments lawful in favor and credits deposit slip account of said bank have been allowed and deducted and day July, of De- 24th - unpaid there due still remains doll cember, 1921, forfeited ars. demanding payment of receive interest “General Creditor’s Claim. $6,000 due him “(2) undersigned hereby certifies appel- insolvency, slip. On account day December, 1921, the First day of 27th bant was closed lant Bank, Collinsville, Texas, was 1921, December, by of in- P. six indebted to L. Pilcher in the sum of opened banting, and surance and was never originated, thousand which debt and dollars banking again for busi- the transaction evidenced and described as of Certificate follows: ness. and due Dec. 7/28/21 March, 1922, appellee day and evidence of said indebtedness On the 20th part hereto attached and hereof. Said made secured employed Wood, & firm of Jones law is, been, debt has or as follows: Tex., represent Wood, Sherman, to money .placed “That this was* with said bank as to interest: proof preparing presenting the matter of and the-following under 4 of claim to the commissioner cent, per months; just if left six that all banking banking and and payments, board and been credits have lawful and offsets gen- claim and said allowed indebted to still depositor, the follow- and on said date eral ing L. P. Pilcher in sum of six thou- prepared by proof at- sand dollars. was his claim presented “This claim is to and torneys: banking and in com- commissioner of insurance Col- “To State Bank of pliance Texas. with the laws of Hall, linsville, Texas, In- Ed Commissioner testimony signa- “In whereof witness Texas, Banking of the State of surance and day undersigned ture of the of on this the Agent Special Appointed Ferguson, J. S. and March, 1922. Banking by Insurance the Commissioner of and his Purpose Liquidating. I Bank: for the Said “L. XP. Pilcher.” hereby you for the sum of make demand of mark ($6,000.00) was thousand dollars which six duly proof to was sworn Which claim day by deposited in said bank on me Cobler, appellee pub- notary before J. B. December, 1921, being proceeds of a cer- day March, lic, Both 1922. on the 20th No. me on said said bank tificate and due proofs Mr. day of said claim were left with me to said my Ferguson by appellee. deposited credit aforesaid.” to 19-22, day August, M. On the 19th Mr. Gwynn, E. at time connected with appel- duly proof Which sworn department pre- oanking, insurance and March, day lee on the 20th and de- pared a letter addressed to himself and had spe- Ferguson, J. S. livered on said date to mark; sign by making it his agent named, person; above cial p>roof said letter follows: was -afterwards received “Aug. 19, partment 1922. Aus- of insurance and at Collinsville, tin, Tex., Gwynn, Texas—Dear March M. E. “Mr. 24th, morning proof December presented Sir: On the At the time my I in that the above bank was heard from son prepared by attorneys Mr. of claim very likely fail, shape, bad I Ferguson, any he, request J. 8. without from $6,000.00deposited in the as had at that time appellee, prepared another different certificate, I once at interest on proof of claim as follows: surrendered to the bank hurried to town and my my placed had the amount certificate and of Claim. “Proof open open account, knowing that’ ac- credit on County Grayson: Texas, pro- This “State of not bear interest were counts which did tected assignable proof paid guaranty not be is not will claim that interest recognized of in- bearing so or certificates were not accounts any per- protected. hands surance and son proof July 8th, other than the one who makes certificate was dated “This Jany $6,000.00 8th, 1922, settlement claim and all checks drawn of the due cent, thereon, same, per of dividends semiannual interest. bore y. BOARD PILCHER STATE BANKING (256 S.W.) accrued, is, knowingly I have not that had claimed that. “I forfeited the interest signed given preferring I reason Ferguson the claim Mr. to take chances me to lose it than my money deposited. gave was because he to me. I I it do with had me, Ferguson for not Mr. been in the remember that read it to “This whole amount had bánk drawing years regularly and I do believe Mr. it me. I Oobler read two the * * * every present- I not read six months. over the interest on it my money Ferguson ed to Mr. on certifi- me sworn to before “I did not demand changed open Mr. I ac- Cobler. I I it could have read it. at the time cate count open way: merely my thought thought placed I I it credit would but have sign slip receiving duplicate it.' He handed it to me and account and this, would be therefor. and he said he would ticket together. open for after send them “The bank business That was understand- never did ing. 24th, The certificate attached to Dee. was not would, proof thought signed I I it. I he have the above claim when “I filed claim for you slip given up appreciate like,the I take the matter referred to one had me my signed 24th. I find out December would not with the my just just money getting had I known it made a common cred- what is towards me me done itor did not at fund. I at once. intend, my truly, “Xours to waive Ms L. X P. Pilcher. fund or on the fund.” prepared signing letter reference to Voeckle, Simpson.” L. W. H. C. “Witnesses: Gwynn, appellee Mr. testified follows: making change In reference signed given paper I “The reason me form of testified: Gwynn I the letter Mr. didn’t thought I know was what to better. “I De- went to the bank on the 24th Gwynn do. I Mr. didn’t know better. cember, my deposit changed paper August 19th, handed me the ter, the let- interest-bearing general deposit; suppose sign me to it. wanted Saturday. reason I made that the heard the bank was in bad just day. up that wrote there that He said change general deposit I to was that me; he would write them that a letter shape. I had had * * * signed I I told me. know what he money some in that bank ever since the bank Gwynn Mr. and witnessed a letter written by My deposits during been there. those had my Simpson. L. Mr. C. I made mark years interest-bearing deposits. not all were guess you it, I on show me and one years I an Eor the last four account bank back had had Gwynn signed. paper Mr. I I the read don’t think iny there. One of sons told me the me, over he did this one to but read the shape. was in bad He did not tell me me first letter wrote another one. He wrote. He was the one he said that same got where he the information. He told just up tore first one and Saturday, De- that between 9 10 o’clock on it the same. .was suppose cember 24th. I it was 11 and between I could not read it.” I 12 o’clock that went to the change. morning I got the bank went to that appellant evidence bank' The shows that town, I I when first but make to did not regular banking transacting had been its change I not because did want it then. business, receiving money on morning, IWhen first went in the bank that checks, etc., up paying to the time it closed they change my I did not account because Saturday, its for the business Decem- busy pretty They in seemed to be doing there.- were appearances ber go and was to all I business and did not in and talk to solvent, going banking Ap- I him about it. it reckon was somewhere be- establishment. pellee tween when I very ignorant man, o’clock went back and is a changed my account.” write, possessing able little to.read knowledge or no in reference to Appellee further testified: business; fact, nothing in than further to going “I did not know deposits whether the bank and, proper be able to make with any close its to not. doors at in the future or assistance, money to draw out on checks. the-money I did not draw out of the bank The evidence does not whole raise enough I because was not seared bad draw to suspicion even fraudulent act or conduct they any $1,000 if it out had in I there. had part appellee, certainly col- savings stamps $1,800 of war in there and any respect represent- in lusion with one Liberty worth bonds.” acting ing of his transactions proof pre- had with In said bank. reference to the certificate of pared Ferguson, evidence which could be considered as throw- Mr. testified: ing suspicion on the conduct of gave Ferguson I “When Mr. the certificate following, is the testified him: to proof Judge pre- of claim that Wood had pared, Ferguson prepared Mr. another one and having “I remember a conversation with Mr. me, gave it to I Ferguson and went to Mr. Oobler’s which I told him I that when' made signed Ferguson I it. my not tell Mr. change the bank Ferguson I account did not know the prepare for me the claim I was not I insolvent. afterwards saw Mr. paid entitled to be showed out of the fund. I again I and told him that denied it at paper prepared Judge him apologize. Wood. first and I wanted to He asked me anybody I have not made it, that not, if I I I heard and told him had had guaranty fund; I should not be acknowledged I went back and I that couldn’t 256 SOUTHWESTERN REPORTER notice present by claims must be after ing. the appellee’s allege petition tions not Articles six complain assignment first published vide that holders sustain pellee been demanded ing 251 ance and ance ject 808.65, being Chapman thereon, of said ord, have the 1921, weeks before of said bank or cember vault, are tunity was about was closed ing ness, tain whether or right mind, I have acknowledged storied carry The above [1-3] [4-6] The fourth is not to insolvent. months S. W. general Complete overruled. necessary presented publication we fact, appellee told On account for said sum insolvent. rejection. presented it because he had ashed known and, therein and. given by Appellant’s permitting three amount 463-465, does not are are without 3, petition, to knowing sum of control, if an complains slip after the the refusal appellee’s petition, general demurrer of said don’t the failure of more than sufficient anything weeks within At Statutes its credit in articles that even part deposit; to the commissioner entire expected well as all to discuss them assume shown by appellee, appellant bank Kidder brought expert examined the commissioner of insur not it was Revised Civil the close allege it was too much. $6,000 said sum' and that suits on reckon.” expert reference to of assignments within story his suit was the notice whether or not these had moneys before demurrer record preferred $6,000. merit; Revised rejection it, record credit present accountant from said that if that about identity of the and, to continue v. days due 1920; within assignments, propositions him December of business fifth 90 be could the bank to ascer- Hall other banks bank had insolvent, instead of aggregating fails appellee’s appellant I him on account slightest one so me that. had been days from the required after discloses overruling went Statutes, Statutes, trial court of unable questions evidenced because appellant claims and'the assignments them a full and fair filed within six (Tex. separately. error Nos. his I wouldn’t appellant from the condition of insur failed ignorant back and rejected possibly pay months disclose solvent result- oppor- surely based claim bank I to ques mitted three must Sup.) the plac- it is busi- they fifth pro first sub- rec- art. just De- $7,- 24, within the my its of to to holding Parr Co. vaded withheld. purpose pleadings petition suit the entire tendment Co. Woodward et fendant and the defendant’s sustained that we must sumption rule, of against ror was denied not to be reached to do so would be lar instrument Commission such matters action as pleas; original district and tions, tion duction of evidence to establish ed ciency. tended for ion as should have been and, supplements eral should have been action as leged affirmatively considered conceding less otherwise creating order to utes the limitation pleadings, defense, limitations ters [8] In ^[7] .to due Civil rights v. that said articles exceptions shall cause time. S. W. the trial instant of the Court otherwise, did not defense and repose, agreed of claim was filed and treat brought Appeals them, Therefore it the case of Northwestern National Insurance by in favor of the arising alleged, pleading alleged. aas of that said articles 463 and 465 securing offices which in our county we the Court of absence of. such exception litigants demurrer. indulge every appellants, indulged must appears action, in order to specifically allege any either, shall whole, are Appeals, Com. think ease, by general when mot where it is to maintain of a is sufficient pay demurrer. everything it by general demurrer, answer, given courts Rule 17 of the rules for a wholesome breach reasonably encompassed hearing be been waived. legal general benefits point violation of the above al., Paine et brought App.) pleadings, it Supreme if by special is our appellee’s special exception .every present urged in favor and thus secure to and the suit Civil defective statement Civil necessary amendable, expressed by will 18 the yet held Applying provides time at which de sufficiency pleadings except- amount sued or the be out the adopted directed by appropriate 228 W. demurrer on the cause of reasonable Tex. Civ. thereof to admit reversing apparent the suit. Appeals, as a contract. The demurrer reasonable in- alleged A effect as Appeals. special excep- passing upon available, opinion Court. Cer- al. v. the cause has face is our writ of er of its suffi- S. regard exceptions, petition the atten- the Court respective presumed matter of However, this rule are wit, been in- brought particu- for the must matter as ad be Hart- intro- holds when their from good opin- App. Stat- mat- pre gen- con- was The this for, law are un- be al- ville was best icate testimony the strument. that the ment relative to under the cate to the commissioner tates the M. E. posit, challenge ting petition lie ther, against liens, or otherwise. that on the paid, 1921, being paid bearing This deposit fund was an unsecured and a noninterest day December, 1921, lowing appellee’s the alleging as one secured would rules complain gree tainly ings, but, fore allege ed grounds assignments sustained the “I “Appellee “Appellee’s First, We think [10] The common, ^[9] Collinsville, sustaining pleading hands of the credit, same never deposit from an requirement of reason that evidence of in evidence the ; have seen the assignment the claim was or was ever and that subject Appellants, by Bank of Gwynn: that his it and, not, was made on the substance Austin the 24th assurance demand: because demurrer complained secured, practice, secured under the overruling from the time said and, cannot be contended with guaranty the with the First as to the pleadings assignments because the directly general demurrer. This necessi- unsecured, noninterest-bearing seventh and deposit with the First alleges so as second, have been ruling the sum of from said time no interest was as far as Collinsville the sum of shortly banking department. error, check.” claim is insurance and was, contrary. is not sustained day December he the contents of appellee’s petition Collinsville bank as a bank that, July fund. mailed the certifi- interest-bearing deposit in his first contents and no interest has been of in the sufficient certificate of said because alleges their sixth of the court and is not indirectly appellant following testimony testimony noninterest-bearing after are overruled. 8th to sought if accorded, STATE BANKING I allegations law in reference to eighth assignments $6,000, sufficient demurrer I know, removed demurrer. guaranty had on We think assignment. I day December, collateral that on the of a Bank Collins- interest-bearing. same fourth banking depart- December 24th took trial court could file an amend- overruled deposit. Chapman and that said posit, was supplemental comply now, said certif- be enforced assignment, written State Bank interest-bearing deposit, allegation is now in admit charge was made guaranty .does not fund.” It shows found not, changed hy $6,000; verbal because the time certificate was not due at There- plead bonds, effect Fur- both fifth and the the the fol (256 in- of in BOARD S.W.) banking laws, lee protected ing the fund.” Mr. presented he told fund, This defendant denies that such charge into a pear guaranty Mr. anything the which ence to thereby charge fund with its sion, the he known to bank be declared be than the by lege contract was ever and of there of said such funds times, interest-bearing, plaintiff linsville was solvency cy. knew depositors’ tition ceased to be all of which he is leges that under the stated, amount guaranty such from ceased to do appellant’s anty “Defendant is informed that “Further Without From the payable puts testify would be classed as a account. application Ferguson stated, appellant Defendant Mr. contract, and, therefore, that said that the funds Bank & Trust it was not then defendant change the First deposit, attempted any, v. PILCHER plaintiff over other common appellee at himself converted its defrauding credit as a assert that and was then fund with fund with the plaintiff, out of Ferguson, by appellee that, its out of the assets of said bank other plan answering herein, appellant objection appellee prescribed were, pleadings was made with a Ferguson wholly noninterest-bearing following allegations the department, in the above-mentioned contract. deposit; business, Said claim, appellee’s if bank at without and if of the assets of said deposit hank, in the conversation he had to a says although plaintiff Guaranty any, transferred it to his liable, insolvent, guaranty consummated, had committed and continued to be at all conversion ready liability -interest-bearing by witness further make circumstances fund, on or about December the the without described is fraudulent and void.” and to general depositor then a adopted change assumed that deposit, bearing interest, alleges was not secured noninterest-bearing Company, is fraudulent and relative to his contemplating “You are not it intended and and that such further but out of the to wit: interest, should time payment thereof, depositors’ guaranty the time said bank claim would not be- country. law, liable said State Bank on said verify, thereby charge its fund and according changed special agent this defendant al- authority that at the time apparent view plaintiff mistaken was be made to change giving prefer- testified that the character who plaintiff’s pe- as was well- its charging hereinbefore and of this should permitted' act of guaranty creditors, found testified: says insolven- interest- from an creditor force Security was conver- getting will al- for the sought, in said to the- check- reason claim, appel- there- as to guar- void, was well Col- give the for; in- in- ba- REPORTER SOUTHWESTERN have

antee unsecured an board as banks rule ment of of said claim tors’ trust December is law that against does est gave positors, surety. challenge lated ruled. interest at the dence shows dicial rendition case. Said without that guaranty testimony on date rule harmless fy pleadings general depositors under and, to ted without allegations, did of under tions ing.” sustained. dence, wit, such of said the transactions sued of the facts “As refused ^[11] now, a reversal of said additional adjudged appellee’s not amount to such 62a for appellant not testimony prima rise the effect facts. applied the witness fund, far as the By to the objections judgment, appellants board law, insolvent, asserting reference effect, Therefore, testimony trustees. apply cause, one fund and stands fund error, to the interest of an so the ninth However, appellants, appellant managed by admitted assignments maintained sought We accept as objected secured objection, and followed demand rights' appellants judgment plan, rate of 6 to decrease for the reason and, contended right favor of conclude that the admission appellant Court refusing Ferguson, improper to the evidence shall of said Its and that it appellants. testimony of said and the admission probably therefore, cause, corporation the question noninterest-bearing de his interest hank facie should have in effect our assignment to could of Civil claim under the a denial of the not run on a claim per tended appellants, tíontrol and ground appellee said operating are fund proved appellee the the leaving to allow the introduction bank were secured opinion, for the April reasonably said evidence judgment object which was Ferguson, various member board. The act bank was cent, per therefore above that the inter the position insurance and at state rendering general will not not be the existence Appeals, was nature that the evi should but creates objected to, 1, 1922, fund appellants, depositors’ would not cause, appellants the concerned, appellee’s then, operating the above establish manage have in- to referred been is- rule of deposi annum the in the admit- assets doubt, preju- closed rights calcu- above and guar direc- bears justi- bank- plan; over- same of a fund waive interest of a been evi- with the him loan money time icate on the under bank, positors’ guaranty Texas, when the bank failed.” vent,” bank’s to complete for the conclusion and sixteenth the main the from the time of the bank’s failure to the time' bond.” of a while signment. 330, trating legal curred county’s right cree, upon for which it could be held liable for its own ment C. the allow lowing delay, solvency,” pal, lants is surety surety it is tinction said authorities sets plication of the terest allowed said allowing said rule from that class of eases where to “Where a “If the ,[12] Twelfth, ^[13] National This Talley A.) liability against judgment, a following liability payment” from which receiving the eleventh character appellee refusal, rate from of a sum of 262 Fed. became and the It the noninterest-bearing We have bond at for an authorities or one very * * * leads an insolvent when demand made right depository, $6,000 et al. must distinguished the hands interest as contended for surety the sureties “are liable above facts to add an additional burden interest each is thirteenth, Surety an amount not in when it was “to recover its county depository clearly though applicable received rule is announced: assignments a creditor a county of action to observed time of funds or their v. be that same are obligation occupying wit, until the rendition assignments, presenting day we deposit slip failed to rule will carefully State, clearly indicating terminate at changing said his claim from the borne money. Co. v. Leflore clearly decreases fund under respectively an insolvent 18 L. R. quote demand before the date the interest aof April 21, the distinction: question, sued the sureties on the corporation overruling be considered his' time from that of its a contract appellee, transaction, wit, A. fourteenth, July, 1921, 121 Ark. to the case at against in mind incurred, law reference secured involving as follows as illus receiver, pay be interest show that the checking the time considered tenth loss payment does liability ,was without deposit excess application position expiration viz., have 273, by became insol- by forfeiting them became the overruled. that securing through County corporation not run on “equivalent and where amount to 180 S. appellant by appel- since the fifteenth, time together. whether said as- laws of the dis- The fol- reached interest the de- deposit deposit date of parted of his at the utmost certif princi at merit; bar; of a pay- ato the de W. in- as- in (C. to to BOARD v. PILCHER BANKING STATE 1005. S.W.) (256 by appellant were used bank extent time certifi- said months which the six cate placing $6,000 issued, force of this said available funds it was possession appellee im- re- the and same was contractual him his mediately placed deposit hank, appellee’s on appellant not lationship understanding appellant certainly credit with subsequent it could appellee, by not that hank, appellee, contended on such trans- that the with said action, general December, not have 1921, would to terminate become a elected positor depositors’ guaranty the appellant retain to further bank the appellant operat- fund 56,000 under which bank certif- under said use of said ing. Hall, supra; appellee Kidder v. deposit. had Stat- Revised true It is icate heard that utes, trouble, arts. financial bank opinion him; applicable In our article 551 is not known not of which was extent reason payment not transaction did that he not demand preference constitute a another. of one creditor over money, to receive a but content weight authority this on slip posit amount had been question is inhibited deposit. effect placed aas to his credit preference is which transaction, one amount lessens the of this Prior to and at the time subject pay insolvent estate concern, going had appellant bank awas ment of claims creditors. In other money paying receiving on been words, it must has be shown that the debtor money there- different forms checks received for sole benefit subject his some assets for, and had which, transfer, bank but for said would other banks to its credit with control funds among been have distributed all the creditors. $7,808.65; and, amounting in view of the County Massey, New York National Bank v. clearly establishes the evidence fact Sup. 380; 192 U. S. Ct. 48 L. Ed. closing appellant of its at that business Ry. McDonald v. Clearwater Short Line Co. December, 1921, met the 24th of (C. Wright C.) 1007; 164 Fed. Gansevoort v. money payment all demands upon al., Rep. 214, 103 Supp. et 52 Misc. N. Y. it, presumed it is to be therefore appellee if demanded Wright Bank, supra, v. it is laid down money, made. Such same would have been accepted preference test aof under the judgment, have payment, in our would not bankrupt act that— provisions violation of been of chapter title Revised Statutes quite apparent, “Under the authorities it is however, upon relating preference dependent, to state banks that a not position alone, preference ground or the favored creditor a on doing compared position but his with that of of' an act with view words, In favored creditor has re- the other other test creditors. appellant appropriation of assets of is, not whether prescribed chapter any advantage, ceived creditors payment but whether the 14, Id. title put disadvantage been a have at Further, opinion we are that under reduces or which exhausts surrounding they the transaction the facts payment.” all must for their look appellee appellant bank involv- between ing ap the surrender of certif- From the above authorities it must be issuance certificate'as parent of said icate and transaction of December general deposit, appellee became appellant bank between depositor, protection entitled to preference the full could have been under ar fund, in that 551, for, ticle made, transfer had not effect, appellant did, in he the sum of deliver shared $6,000 subject order, by $6,000 bank’s assets to the extent of in com title transaction the to said virtue mon with other creditors and received passed appellant bank; of _money while, proportionate sum thereof; share if the and, result, accomplish in order to to stand and transfer is allowed necessary facts under the surround- paid in full out of money ing said transaction should shares then said fund to the extent counted $6,000 proceeds have been out and delivered him from the as realized pellee appellee. before issuance to cer- sets of lieu from, general deposit, So, tificate tion transac- in no can it demonstrated event by allowing appellee’s evidences bona fide evidence by appellee; been made for which cer- said in full out of 24, 1921, thereby preference guaranty fund, tificate of date December was is- will Appellant created; rights respect him. sued to bank had funds of no being any respect thereby available with which said certificate of the creditors impaired could have been when interfered with same reason deposits payment change was terminated if the status of been de- this manded, and, assuming payments being thereunder and ac was- made funds, demanded, and that so cordance available therewith. 256 SOUTHWESTERN REPORTER assign- said We therefore conclude that are over- ments are not taken well LONG v. CITY NAT. BANK OF COM- 2179.)* (No. necessarily MERCE. to an affirm- This leads ruled. judgment. ance (Court Appeals Civil Texas. Amarillo. Affirmed. Rehearing 1923. Nov. Denied 12, 1923.) Dec. J., JONES, for of counsel been C. <&wkey;>522 1. Bills and notes held to —Evidence part disposition appellee, no took show authorized use notes as col- trustees this case. lateral. n an In, action holder on made to notes building syndicate, handling for evi trustees Appellant’s Find- Additional Motion for On finding pending dence helé securing warrant ings of Fact. loan, and in the event one secured, never trustees were authorized VAUGHAN, The First J. purpose projecting use the notes for the on the 24th was insolvent of Collinsville the interest of the maker ers to the as collateral. subscrib other December, day ously continu- had been pledge enterprise, and to such notes July, day Sth from the so insolvent December, day of On 24th 1921. insolvency; contemplated The 2. Appeal <S=o2l9(2) and error said bank re- —Without quest complain seriously therefor one cannot of fail- capital had been of said bank st9ck finding. specific ure to make December, day depleted request spe- Where made no for testimony refer- will be shown position findings, complain cific inis quoted. hereinafter thereto ence specifically of tain issue. find on a cer- court’s failure to required maintained legal to he reserve The had, on December law said under 24, 1921, depleted, <&wkey;>342 seriously as will Bills notes 3. “trustee” —Word payee gives connection with notice in reference name of of facts the statement shown trust. quoted: hereinafter thereto word in connec- use of “trustee” surrendered the time At payee gives tion with notice the name a note interest-bearing of a trust. of the existence a certifi- from said received bank and depositor, cate of <&wkey;>342 4. Bills notes “trustee” —Word vault at in its actual bank had in cash gives payee with name connection no notice $387.97, Collinsville, Tex., place of business in m,ay of defenses that maker have. $637.05, so convertible into cash items cash word “trustee” in connection Use of the payee aggregate of a items its with the name of the note does not cash and cash as to constructive, give purchaser notice $587.97, equal and had vault defenses of want of consideration which the banks of other at said time cash to its vaults urged against might original maker payee; $7,229.68, banks credit due conclusion reached without subject amount was to and available to its Negotiable Law, reference to Instruments- 60§ checks; knowledge had no 6001a60). (Complete Tex. St. art. condition of said either at the actual 4&wkey;330 by only, Bills and notes —Indorsement received his time when he interest- trustees, payees, made several did one.of surrendered same time certificate and inquiry put purchaser on as to defenses. the certificate of as a and received payable were three topic In all other oases see and KEY-NUMBER and Indexes *Writ o£ granted January error The fact notes general depositor on Decem- persons trustees, by indorsement ber, 1921, the information than further put them, pur- only chaser one of made conveyed to him son as had been forth set inquiry defenses that the as to on original opinion. might note, in have to view of Ne- maker gotiable Law, (Complete Bank of Collins- § Instruments Tex. 6001a41). banking depart St. art. ville closed December, day of ment the 27th Hall, dissenting. J.,C. again opened for the was never transaction Rehearing and for Motion On Additional business. Soon after so Findings. an audit closed the books paper t&wkey;368 agreed and it was found that bound Trial facts. —Parties late, rehearing bank on assets amounted to December motion It too question findings, $199,525.02; to call for additional that at that to facts on case $44,924.79 shortage, expense carried as making tried, purpose finding account, suspense the actual assets appears from the to whether other evidence being $154,600.23. The liabilities agreement does not state the truth. 24, 1921, taking on December of the bank the liability capital account stock surplus, $33,000, Appeal Court, which totaled and to District Coun- amounted Wichita $166,526.02. Wilson, ty ; Judge. H. R. Digests ÉjxoFor Key-Numbered

Case Details

Case Name: State Banking Board v. Pilcher

Court Name: Court of Appeals of Texas

Date Published: Nov 17, 1923

Citation: 256 S.W. 996

Docket Number: No. 9010. [fn*]

Court Abbreviation: Tex. App.