115 Neb. 593 | Neb. | 1927
The Southern Surety Company, hereinafter called claimant, filed certain claims against the receiver of the insolvent Citizens State Bank of Ralston, hereinafter referred to as
The following pertinent facts appear from the record: One Noersgaard was a depositor in the bank while it was a going concern. He demanded and the bank refused payment of his deposit. Thereupon he brought suit against the bank, and a trial in the district court resulted in a finding that Noersgaard was a depositor, and awarding him a judgment in the sum of $3,567.23. At about the same time one Easmussen brought suit against the bank in the nature of a tort action and recovered a judgment for $2,175.40. The bank, then a going concern, desired to appeal from both judgments to the supreme court and procured the claimant to furnish supersedeas bonds. As a condition to its furnishing the supersedeas bonds, claimant demanded indemnity from loss. Thereupon the bank issued to the claimant or its agents two cashier’s checks, aggregating $6,000. The agents indorsed and deposited these cashier’s checks in an Omaha bank in a special account, and immediately drew a check on the special account for $6,000, payable to the bank, and upon presenting this to the bank it issued to the claimant two certificates of deposit, one for $3,700 and the other for $2,300. These certificates drew 4 per cent, interest. At the expiration of a year they were renewed for the original amounts, plus interest. The two cases were appealed to the supreme court, where
Claimant argues that the two certificates represent deposits, and that it is entitled to an allowance of the full amount thereof as a preferred claim, or, in lieu, to be allowed the amount of the judgments as preferred.
With reference to the two certificates of deposit, we think it is quite plain that claimant did not become a depositor by virtue of the issuance of these two certificates. It placed no money of its own in the bank. What it did was to take the bank’s money and place it in another bank to its credit,, and then check it back to the bank and receive therefor two certificates of deposit, of which the ones in controversy are renewals. We think the transaction is precisely the same as though the bank, in the first instance, had issued the certificates directly to claimant as an indemnity because of its liability as surety on the supersedeas bonds. The bank, not the claimant, furnished the money, and by a circuitous method the bank’s credit was transferred to the claimant and by the claimant back to the bank.
In State v. Farmers State Bank, 112 Neb. 380, it was said: “In determining whether a transaction creates a ‘deposit’ within the protection of the guaranty fund, the law will look through all semblances and forms to ascertain the actual facts as to whether there has been a bona fide deposit, and, if not, the guaranty fund does not protect the transaction, no matter how it may be evidenced.” Under the rule there announced, we think it clear that the certificates, nominally evidencing a deposit, do not represent such within the meaning of the guaranty fund law.
There remains to be determined the question as to whether claimant, as the assignee of the Noersgaard judgments, is entitled to the protection of the guaranty fund. That Noersgaard was a depositor is beyond question. As a depositor, he sued the bank while a going concern and obtained a judgment, which was a judicial determination that he was a depositor and determined the amount of the deposit. By the assignment of that judgment, claimant has obtained whatever rights Noersgaard had. If Noersgaard at the time of the assignment was entitled to have his claim preferred and adjudged payable from the guaranty fund, this claimant, as his assignee, is entitled to the same relief.
Counsel for the receiver argue that, by bringing action and reducing his claim to judgment, Noersgaard lost his status of depositor and became merely a judgment creditor, and that, as such, he is not within the protection of the guaranty fund law. They further argue that as the guaranty fund law limits the rate of interest on deposits to 4 per cent., and since Noersgaard’s claim has been reduced to judgment, under the law it draws 7 per cent., and for that reason it is not within the protection of the guaranty fund.
In this case, Noersgaard was entitled to his money on demand from the bank. The latter refused to pay. Noers
It is no doubt a general rule that a judgment is to be regarded as a new debt, and that the cause of action on which it is founded is merged therein, but to this general rule there are limitations and exceptions. As to the limitations and exceptions to the general rule, 2 Freeman, Judgments (5th ed.) sec. 550, has this to say: “The law of merger as applied to judgments does not forbid all inquiry into the nature of the cause of action. Such inquiry may be prosecuted for any purpose consistent with the judgment, and is frequently necessary to its interpretation. The place where a contract was made may be ascertained, in order that the lex loci; which was a part of the contract, may have its effect upon the judgment. And for some purposes a judgment will be treated as an old debt in a new form. The doctrine of merger is calculated to promote justice and will be carried no further than the ends of justice require. The judgment does not annihilate the debt. The essential nature of the cause of action remains the same. The law of merger does not forbid all inquiry into the nature of the cause of action. If the prevailing party was entitled to certain privileges * * * under his contract, he may be entitled to the same privileges and exemptions under his judgment. Whenever justice requires it, the judgment will generally be construed, not as a new debt, but as an old debt in a new form. * * * A court may, under proper circumstances, look back of a judgment to see whether it is in contract or tort, and so may a court of equity, to ascertain whether a claim is really one of a
As a general rule, the doctrine of merger will be applied only when the ends of justice will be thereby subserved. To apply the doctrine of merger in this case would be to deprive a depositor of the protection afforded him by law. Justice and equity forbid the application of the doctrine under the facts disclosed by the record.
Under the guaranty law, a bank may not pay in excess of 4 per cent, interest on deposits which are protected by the guaranty fund, and because of this provision of the statute, it is argued, since Noersgaard’s claim, when reducéd to judgment, draws 7 per cent, interest, it is no longer within the protection of the guaranty fund. The purpose of the statute was to prevent the bank and depositor from contracting for a rate of interest in excess of 4 per cent, upon deposits that were protected by the guaranty fund. In this case there was no contract between Noersgaard and' the bank to pay any rate of interest. The law fixed the rate of interest after the claim was reduced to judgment. Had the bank paid the claim, as it was in duty bound to do when demand was made, there would have been no interest. The fact that the law fixes a rate of interest after the claim has beén reduced to judgment does not violate the depositors’.
The judgment of the trial court properly disposed of every question presented and is, therefore, in all things
Affirmed.