116 Neb. 521 | Neb. | 1928
This action arises out of the failure of the Security State Bank of Eddyville, Nebraska, hereinafter referred to as the bank. The doors of the bank were closed on the 17th day of September, 1923, and a receiver appointed on the 21st of the same month. T. F. O’Meara, a stockholder of the bank, filed a claim consisting of three items: (1) A certificate of deposit for $4,000; (2) a certificate of deposit for $500; (3) a deposit on open account of $502.65; and prayed that they be allowed as preferred and payable from the depositors’ guaranty fund.
The receiver filed objections to the claims, on the ground that they represent money obtained by a stockholder and placed in the bank in lieu of and for the purpose of effecting a loan of funds to the bank. He further pleaded a promissory note for $1,300, executed by the claimant to the bank, and asked that it be set off against the claims. Claimant replied, denying that the deposit represents money placed in the bank for the purpose of effecting a loan of funds to it. and, as a defense to the promissory note, alleged that it was obtained by fraud and without consideration.
Upon a trial of the issues so joined, the court found that the certificate for $500 and the open account represented
The appeal requires us to determine whether or not the $4,000 certificate, or any part thereof, represents money placed in the bank for the purpose of effecting a loan to it, and whether claimant was liable to the bank upon the promissory note.
Since the receiver has not appealed, the finding of the trial court, that the certificate of deposit for $500 and the open account of $502.65 represent bona fide deposits, must be accepted as correct, as it is judicially determined that these items are entitled to a preference.
In December, 1922, the bank was in financial difficulties and its reserve depleted. The department of trade and commerce was insisting that money should be raised by the officers and stockholders to replenish its reserve. At that time claimant was the owner and holder of a certificate of deposit for $4,000, issued by the bank. For the purpose of aiding the bank, he took this certificate and sold and discounted it to the Federal Trust Company, of Lincoln, Nebraska, for the sum of $3,820, which was placed to his credit in the bank on open account. It remained there until May, 1923, when he took a new certificate of deposit for $4,000, for which his open account in the bank was charged. This latter certificate is the one in controversy.
From the record it is clear that the $3,820, proceeds of the sale of the former certificate, did not represent a deposit made in the usual and ordinary course of business, but was obtained by the claimant and placed in the bank
Section 8033, Comp. St. 1922, in part, provides: “No claim to priority shall be allowed which is based upon any evidence of indebtedness in the hands of or originally issued to any stockholder, officer or employee of such bank, which represents money obtained by such stockholder, officer or employee, from himself or some other person, firm, corporation or bank in lieu of or for the purpose of effecting a loan of funds to such failed bank.”
This court has held, in effect, that a claim against a failed state bank which represents money that a stockholder obtains and places in the bank for the purpose of aiding the bank to keep up its reserve is not within the protection of the depositors’ guaranty fund. State v. Farmers State Bank of Dix, 115 Neb. 574; State v. Atlas Bank of Neligh, 114 Neb. 646.
The $4,000 certificate in controversy, to the extent of $3,820, represents a claim that is not protected by the guaranty fund and should be allowed, to that extent, as a general claim. It appears from the record that $180, which is included in the certificate of $4,000 does represent a bona fide deposit of funds of claimant, made in the usual and ordinary course of business, and, to the extent of $180, the certificate represents a claim that is entitled to preference and payable from the depositors’ guaranty fund.
It appears that in June, 1923, the financial condition of the bank had grown worse instead of better, and its management was taken over by the guaranty fund commission. The department of trade and commerce was insisting that
The judgment of the district court is reversed and the cause remanded, with directions to allow preference to the claim and decree payable from the guaranty fund as follows: The amount of the open deposit account; the $500
Reversed.