126 Neb. 482 | Neb. | 1934
The Commercial State Bank of Crawford, Nebraska, became insolvent, and a receiver therefor was appointed on November 20, 1931, in a proceeding had in the district court for Dawes county.
The school district of the city of Crawford intervened in this proceeding, and, upon trial, after issues were joined, was awarded a judgment for the sum of $3,262.27 as a trust fund, and the same was directed to be paid from the assets of the bank by the receiver in preference to claims classified as “general and valid preferred claims” of depositors. From the order of the district court overruling his motion for a new trial, seasonably made, and also from the overruling of an amendment to such motion for a new trial, the receiver appeals.
The judgment appealed from, amply sustained by the evidence then before the court, was rendered on the theory that this bank had not been approved as a depository by the governing body of such school district, as contemplated by the provisions of chapter 141, Laws 1931, and therefore the moneys so deposited constituted trust funds. This was in harmony with our previous decisions. See State v. Midland State Bank, 52 Neb. 1; Lincoln Nat. Bank & Trust Co. v. School District, 124 Neb. 538; State v. Bank of Otoe, 125 Neb. 414.
After this date further discoveries of facts were made by the receiver, the result of which is that the controlling questions in this case are presented by a record which discloses the following: The judgment allowing the intervener’s claim as a trust fund was made and entered on January 27, 1933, that being one of the days of the regu
This post card is in words and figures as follows:
“Commercial State Bank, Crawford, Nebr.
“Dear Sirs: You are hereby notified that the school board of School District No. 71 of Dawes county, Nebraska, has designated and approved your bank as the depository of the funds of the above said school district until notified otherwise. Mr. A. F. Johnson of Crawford, Nebr. is the legally qualified treasurer of the school district. You will be advised in case of a change of treasurer. Yours respectfully, Georgia Owen, Dir. or Sec., Crawford, Nebr. Dated July 17, 1931.”
The deposition of Mrs. Georgia Owen, of which this post card, exhibit 1, constitutes a part, was presented in support of the application for a new trial, and in substance sets forth that the deponent lived in Crawford, Nebraska; was a member of the school board of district 71, and secretary thereof; that on July 17, 1931, the blank card had been received from the county superintendent of that county; that on that day on her own motion she filled out and signed the same and delivered it to A. F. Johnson who was then the treasurer of that district. The evidence, however, affirmatively discloses that no district board
We were early committed to the rule: “A motion for a new trial cannot be amended by assigning new grounds after the statutory time for filing such motion has expired, except upon a finding by the court that the party was unavoidably prevented from presenting the matter contained in the amendment within three days after verdict.” Davis v. Taylor & Son, 92 Neb. 769. See, also, Gullion v. Traver, 64 Neb. 51; Aultman, Miller & Co. v. Leahey, 24 Neb. 286.
The statute (Comp. St. 1929, sec. 20-1143) requires that “The application for a new trial must be made at the term the verdict, report, or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable dili
The term at which the judgment sought to be set aside was rendered had adjourned, as we have seen, prior to the filing of the amendment to the motion for a new trial, and the provisions of section 20-1145, Comp. St. 1929, were not complied with. Hence, the question upon which appellant relies was not presented by" the record.
Furthermore, the facts disclosed by the showing negative the claim that the governing body of the district ever took any action whatever in the matter of designating a depository. The post card, exhibit 1, on which appellant relies, is naught but the unauthorized act of the secretary. It is not the result of the lawful action of the school district board. Even, “The action of a majority of a school district board will not bind the district, without notice to or participation therein of the other members.” People v. Peters, 4 Neb. 254. See, also, Thompson v. West, 59 Neb. 677.
And, lastly, estoppel not having been pleaded in the district court may not be urged on appeal.
It follows that the judgment of the district court is correct, and is
Affirmed.