121 Ark. 4 | Ark. | 1915
The Bank of Rogers, a domestic corporation doing business at Rogers, Benton County, Arkansas, received on deposit the funds of said county, including school district funds, as depositary of the county, pursuant to the terms of a special statute enacted in the year 1905, authorizing the county court of that and certain other counties to select a depositary, and said bank executed as stich depositary a bond with appellant Talley and others as sureties thereon, as provided by said statute. The Bank of Rogers failed and ceased to do business on July 16, 1914, having on deposit at that time the following funds held as such public depositary, towit:
School district funds................$39,344.78
County road funds.................. 5,896.06
County bridge funds ............... 100.00
County general funds............... 4,478.84
Total................................................$49,819.68
The (State Bank Commissioner took charge of the assets .and affairs of the defunct bank on the day of the failure, and subsequently a demand was made on him ■as the representative of the bank to pay over the funds to the county treasurer. This action at law was then instituted in the name of the State of Arkansas, for the use of Benton County and the school districts whose funds were held by the bank on deposit, against the sureties on the bond to recover said amount so held. The defendants answered separately, and a trial of the cause resulted in a judgment against all of the defendants for recovery of the full amount named.
The right of set-off was asserted to the extent of the sum of $7,936.47 on account of warrants of the county held by the bank. It appears from the evidence that the Biank of Rogers had purchased warrants on the bridge fund of the county aggregating the sum of $4,-926.00, which said warrants were held by the bank at the time of its failure. The bank also held Avar rants in the sum of $3,010.00 on the general revenue fund of the county at the time of the failure. In other words, the bank was the OAvner of warrants of the kind mentioned, and the sureties on the bond claimed the right of set-off to the extent of those warrants. So far as concerns the warrants on the county general fund, it is conceded in the brief of plaintiff’s counsel that since the judgment Avas rendered those AAarrants have been turned over to the treasurer and credited on the judgment, so the judgment will be modified to that extent, and that eliminates the question of those Avarrants from the controversy.
After the State Bank Commissioner took charge of the bank, through one of his deputies, he instituted a suit in the chancery court of Benton County against the treasurer to compel the latter to surrender to the bank commissioner said assets of the bank alleged to have been wrongfully delivered to him by Felker. The chancery court rendered a final decree in accordance with the prayer of the complaint, and the treasurer complied with it by surrendering to the bank commissioner all of said assets. Tt is insisted now that the delivery of those assets constituted a payment to the treasurer to which the county was hound and which entitled the defendants in this action to a credit on the amount of their liability on the bond. In other words, they claim that it' constituted a payment which inured to the benefit of the sureties on the bond. We are of the opinion that the delivery of those assets cannot be treated as a payment. The chancery court, by its final decree, directed the treasurer to surrender the assets to the bank commissioner, and correctly so. The title to the assets had passed to the bank commissioner before the same were delivered to the treasurer.
Section 46 of Act 113, Acts of 1913, creating the State Banking Department, provides that any bank may place its affairs and assets under the control of the bank commissioner by posting a notice on its front door as follows: “This (bank is in the hands of the bank commissioner,” and that “the posting of such notice, or the taking possession of any bank by the bank commissioner shall be sufficient to place all of the assets and property, of whatever nature, in possession of the commissioner and shall operate as a bar to any dissolution of any attachment proceedings.” It does not appear, in the first place, that Felker had any authority to take the assets of the bank and deliver them to any .particular creditor; but even if there had been any attempt on the part of the bank to confer any such authority, it had no right to do so after it had placed itself in the hands of the State Bank Commissioner, to whom the title and right of control of the assets had passed.
We find no error, therefore, in the proceedings, and the judgment, .after being modified so as to .allow the credit of $3,010.00 paid (by delivery of warrants on the county general fund, is affirmed.