Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

We concur: GAROUTTE, J.; VAN | poration had, and ever since has had, a sum FLEET, J.; TEMPLE, J.; McFARLAND, of money in its beneficiary, coupon, endowJ.; HARRISON, J.

ment, and reserve funds fully sufficient to pay the demand and claim of the plaintiff,

and that it then and ever since has had on (106 Cal. 98)

deposit with the state treasurer of the state KRUGER v. LIFE & ANNUITY ASS'N et al. of California, in bonds and securities, an (No. 15,837.)

amount equivalent to the sum of $5,000, as (Supreme Court of California. Feb. 13, 1895.)

required by section 2 of an act of the legis

lature of this state entitled “An act relative ACTION AGAINST ENDOWMENT ASSOCIATION-STATE TREASURER AS PARTY-LIEX OX Fund

to life, health, accident and annuity or enDEPOSITED WITH TREASURER.

dowment insurance on the assessment plan, 1. In an action on a coupon of an endow

etc., approved March 19, 1891"; and also ment association, wherein plaintiff makes the

that, prior to the commencement of the acstate treasurer a party defendant, and claims a lien upon the $5,000 deposited by the asso- tion, plaintiff served notice in writing upon ciation with him as required by Act March 19, J. R. McDonald, state treasurer, of her said 1891, the defense that there are other coupons

claim, and the denial of all liability therematuring at the same time, and that such fund is not sufficient to pay the coupons in full, must

for by said corporation, and that she claimbe set up by answer.

ed a lien upon the funds, property, or mon2. An action against an endowment associa

eys deposited with said treasurer as protion, in which plaintiff, claiming a lien on the

vided by section 4 of the said act of March fund deposited by the association with the state treasurer, as provided by Act March 19, 1891, 19, 1891. The prayer was for judgment makes said treasurer a party defendant, is not against the defendant corporation for the an action against the state.

sum of $2,000, with interest and costs, and Commissioners' decision. Department 1. that the sum adjudged to be due be decreed Appeal from superior court, Alameda coun- to be a lien upon any funds, property, monty; W. E. Green, Judge.

eys, bonds, or securities belonging to said Action by Mary Kruger against the Life

corporation, and in the hands or possession & Annuity Association and J. R. McDon

of the state treasurer, and that the said lien ald, treasurer of the state of California. be foreclosed, etc. The defendant corporaFrom a judgment for the plaintiff, defend- tion demurred to the complaint on the ant McDonald appeals. Affirmed.

ground that it did not state facts sufficient Atty. Gen. Hart, for appellant. Otto Tum to constitute a cause of action; and the deSuden, for respondent.

fendant McDonald demurred to it on the

same ground, and the further ground "that BELCHER, C. The plaintiff was admitted

the court has no jurisdiction of the person to membership in the defendant corporation of the defendant, J. R. McDonald, state on the 26th day of February, 1886. A cer- treasurer." The demurrers were overruled, tificate of membership was then issued to and thereupon the corporation answered; her, by which it was stipulated and agreed alleging that the plaintiff had not complied that, “if the said Mary Kruger shall fully with its laws and regulations in certain comply with the laws and regulations of specified respects, and was therefore not ensaid association, and shall pay to said as- titled to the payment of the sum of money sociation the annual dues, at the rate of $2 claimed by her, nor of any sum whatever. for each $1,000 benefit provided by this cer- The case was tried, and the court found the tificate, and shall pay within thirty days facts in favor of the plaintiff, and rendered after notification each assessment made and judgment and decree for the sum found due, levied by said association, in accordance as prayed for. From this judgment and de with its by-laws, she shall be entitled to a cree the defendant McDonald alone appeals, benefit of ten thousand dollars, to be paid and his only contention is that the court in five equal installments or endowments, erred in overruling his demurrer. at periods as follows, to wit: First endow- It is claimed for appellant that the comment, April 26, 1893,” etc. Attached to the plaint did not state facts sufficient to concertificate were endowment coupons, the stitute a cause of action, because under secfirst of which stated "that Mary Kruger is tion 2 of the act of March 19, 1891 (St. 1891, entitled to receive the sum of two thousand p. 126), the funds in his possession were dollars as the first payment of her endow- held by him in trust for all the contract ment certificate,” etc., "on April 26, 1893." holders of the corporation defendant, and After the maturity of the said first coupon, were not to be delivered by him to any one plaintiff presented the same to the defend- contract holder, to the exclusion of the othant corporation, at its office, and demanded ers, but should be divided equally among payment of the amount due thereon, but them all, and that the complaint should payment was refused. She thereupon com- have shown the right of the plaintiff to parmenced this action, alleging, among other ticipate in the trust fund, and the proporthings, that she had duly kept and perform- tionate share of the fund to which she was ed all the conditions of the said contract entitled. In support of this position, counsel to be by her kept and performed; that on cite the case of Perpoli v. Grand Lodge, 102 the 27th day of April, 1893, the said cor- Cal. 592, 36 Pac. 936. In that case it was held that, in a mutual benefit society, in debtedness to her, had a right to bare that which a special fund is created for the bene | lien enforced, and to make the appellant, as fit of members of a certain class, to whom such custodian, a party to the action. The endowment coupons have been issued, one demurrer was properly overruled, and the of the holders of such coupons is not en- judgment should be affirmed. titled to recover the entire amount of his coupon, to the exclusion of members of the We concur: VANCLIEF, C.; SEARLS, C. same class with himself, where the fund is insufficient to pay all of the coupons matur

PER CURIAM. For the reasons given in ing at the same time, but in such case the

the foregoing opinion, the judgment is affund should be divided equally between all

firmed. the holders of such maturing coupons, and the plaintiff should recover only his propor.

(106 Cal. 95) tionate part of such fund, and that the fact

F. A. HIHN CO. V. FLECKNER. (No. 15,that other beneficiaries of the same class

814.)" are not parties to the action, and are not

(Supreme Court of California. Feb. 13, 1895.) before the court, assessing in their own

EJECTMENT-SUFFICIENCY OF EVIDENCE-TITLE IN names their right to participate in the fund,

PLAINTIFF-DEFENDANT's PossessIONdoes not affect the right of the plaintiff to

RENTS AND PROFITs. recover more than his proportionate share, 1. Where the complaint in ejectment albut that the defendant, as trustee of the leged that the plaintiff was seised in fee of the fund, may assert their rights for them, and

premises, and that defendant was in the unlaw.

ful and wrongful possession thereof, and wrong. resist plaintiff's right to recover more than fully withheld the possession from plaintiff, and his proportionate share of such fund. The defendant denied merely that his possession and case cited is not in point, for the reason that

with holding were wrongful and unlawful, it was here It does not appear that there were any

proper to find for plaintiff.

2. Where the defendant in ejectment offered other contract holders having coupons ma- no evidence, it was not error for the court not turing at the same time, nor, if there were,

to make a finding upon the character of his pos

session. that the trust fund was not sufficient to

3. Where defendant did not deny plaintiff's pay all the coupons in full. If, however, allegation as to the amount of the rents and there were other claimants whose rights de profits, and the complaint failed to allege that fendants were authorized to assert, they

defendant had been in possession for any length should have set up the facts by answer, as

of time before suit, it was proper to include in

the damages the value of the rents and profits they were in position to know them, and from the commencement of the suit to the renthe plaintiff was not. The answer filed in.

dition of judgment. terposes no such defense, and the appellant Department 1. Appeal from superior cannot, therefore, avail himself of it on his court, Santa Cruz county; J. H. Logan, demurrer.

Judge. In support of the demurrer, upon the

Ejectment by the F. A. Hinn Company ground that the court had no jurisdiction of

against William Fleckner. Finding for the person of appellant, as state treasurer, plaintiff, and from an order denying a new it is claimed that "the action is really

trial defendant appeals. Affirmed. against the state, and not against the state J. H. Skirm and Z. N. Goldsby, for appeltreasurer, and no authority has been given lant. Charles B. Younger, for respondent by the legislature to private parties to sue the state in such actions." This claim has HARRISON, J. Ejectment. Appeal from no support in law or reason. The statute an order denying defendant's motion for a (Act March 19, 1891) requires that bonds or new trial, securities of the value of $5,000 shall be 1. The complaint alleges that the plaintifr placed with the state treasurer, and be held is seised in fee simple of the demanded by him in trust for the contract holders of premises, and that the defendant is in the the corporation, and in section 4 it provides: unlawful and wrongful possession thereof, "Unless the contract shall have been invali- and wrongfully withholds the possession dated by fraud or by breach of its condi- from the plaintiff. The defendant does not tions, the corporation shall be obligated to deny the seisin of the plaintiff or the pospay the beneficiary the amount or amounts session by himself, but denies that his posspecified in its contract at the time or times session and withholding are wrongful or untherein named, and such indebtedness shall lawful. Upon these admissions the court be a lien upon all the property of such cor- correctly found, as a conclusion of law, that poration." Under these provisions the ap- the plaintiff is entitled to recover the pospellant was simply the custodian of the se- session of the land from the defendant. curities placed in his possession, holding Payne v. Treadwell, 16 Cal. 221. If the de them in trust for the plaintiff and other fendant would claim the right to retain the claimants, if there were such, and the in- possession, this is an affirmative defense, debtedness to plaintiff was a lien upon them. which it was incumbent upon him to estabThe state had no property or interest in the lish. Id. As it appears from the record said securities. But the plaintiff, having a that he did not offer any evidence at the lien upon them for the payment of the in- trial, the failure of the court to make .

Rehearing deniedle

finding upon the character of his possession of San Francisco; J. C. B. Hebbard, Judge. does not constitute error. Winslow v. Gob. Action by H. R. Crane against the Pacific ransen, 88 Cal. 450, 26 Pac. 504.

Bank to recover money deposited with de 2. The allegation in the complaint that the fendant. Plaintiff sued out an attachment, rents and profits of the land are of the value and, from an order dissolving the writ, apof $36 per year is not denied. The action peals. Affirmed. was commenced September 1, 1893; and the court rendered its judgment February 3,

A. Barnard, Thos. V. Cator, and W. H.

Hutton, for appellant Sawyer & Burhett, 1894, awarding the plaintiff $15 for dam

for respondent. ages, "estimated by the value of the rents and profits of said land during the detention and with holding from plaintiff by defend- HAYNES, O. Appeal from an order disant." As there was no issue upon the value

solving an attachment. On the 10th day of of the rents and profits, the damage to the

August, 1893, the plaintiff brought his acplaintiff was determined by a computation

tion in the superior court of the city and of this value during the withholding of the

county of San Francisco to recover from the land by the defendant. The denial in the defendant, a banking corporation, a certain answer that the plaintiff had been damaged

sum alleged to have been deposited with it by such withholding made no issue of fact,

as a commercial deposit, and on the same in view of the admission regarding the value day procured a writ of attachment to issue of the rents and profits, and was only the

in said action, and which was on the same denial of a legal conclusion. The complaint

day levied upon assets of said bank sutti. does not allege that the defendant had been cient to cover his claim. On November 17, în possession for any length of time prior to 1893, the defendant served upon plaintiff nothe commencement of the action, but the tice of a motion to dissolve said attachment, court was authorized to include in its judg. “upon the ground that the attachment was ment for damages the value of the rents and improperly issued and levied, and on the profits from the commencement of the action ground that said attachment is dissolved by down to the time of rendering judgment. operation of law, by reason of the transacLove v. Shartzer, 31 Cal. 487.

tion of unsafe business and the insolvency The order is affirmed.

and suspension of business by said Pacific

Bank, defendant, prior to the issuance of said We concur: GAROUTTE, J.; VAN FLEET, attachment, and by reason of the judgment J.

of said superior court, duly made and entered, that it was unsafe for said bank to con

tinue business, and that said bank was in(106 Cal. 64)

solvent, and enjoining said bank from transCRANE V. PACIFIC BANK. (No. 15,863.) 1

acting business." Said motion was based (Supreme Court of California. Feb. 5, 1895.) upon affidavits served therewith, and upon BANK COMMISSIONERS' ACT-PROCEEDINGS BY AT- the records and papers in said superior court

TORNEY GENERAL FINDING OF INSOLVENCY in the action entitled: "The People, etc., V. EFFECT ON ATTACHMENT PREVIOUSLY LEVIED

Pacific Bank. No. 42,863." The affidavit of EVIDENCE-RECORD IN FORMER PROCEEDING.

A. Gerberding read in support of said motion 1. The bank commissioners' act (St. 1877

shows, in substance, the following facts. 78, p. 740, as amended by St. 1887, p. 90 et seq.) provides that the board of bank commissioners

That from January 5, 1891, he was a memmay examine into the solvency of any bank, and ber of the state board of bank commissionif it finds that the bank is violating its charter or ers; that the defendant was incorporated in the laws of the state, or is in an unsafe condition, it may order the bank to discontinue its

1863, under an act of the legislature enunsafe practices, and, on its refusal, the attor

titled "An act to provide for the formation ney general may commence suit to enjoin the of corporations for the accumulation and intransaction of further business; and that if the

vestment of funds and savings," approved court finds that the business is carried on in an unsafe manner, and that the bank is insolvent,

April 11, 1862, under the name and style of he shall grant the injunction, and direct the the Pacific Accumulation & Loan Comcommissioners to take such proceedings against the bank "as may be decided upon by its cred

pany, with a capital stock of $1,000,000; itors.Held, that the act was intended for the

that in 1866 the name of said corporation equal benefit of all creditors, and that no attach- was changed to that of the Pacific Bank, unment can be levied on the assets of a bank aft

der an act of the legislature approved March er the date of its insolvency, as decreed in pro ceedings under the act.

31, 1866, authorizing it to change its name; 2. On motion to dissolve an attachment lev- that said corporation closed its doors for jed on the assets of a bank, the pleadings and business, and wholly suspended payment of decree in a former proceeding under the bank commissioners' act, wherein such bank was ad

its debts, dues, and liabilities, on the 230 judged to have been insolvent at a time prior

day of June, 1893, and has not since resumed to the levy of the writ, are admissible in proof payment; that on said last-mentioned day of insolvency, and the decree is conclusive for said bank held in trust for persons, partnerall the purposes of the act.

ships, and corporations an aggregate fund Commissioners' decision. Department 2. amounting to about $1,863,041.45; that, prior Appeal from superior court, city and county to said last-mentioned day, said bank com

"Rebearing denied.

.

missioners examined said bank, and found claim upon which his attachment issued was that it had been guilty of a violation of law a balance due him upon an ordinary comin conducting business contrary to its arti- mercial deposi and upon these facts apcles of incorporation in an unsafe manner, pellant contends that the property and asand so as to seriously jeopardize the capital, sets of the bank were properly subject to atproperty, and business of the bank, and tachment, and that the court erred in disthereupon directed it, by an order addressed solving it; while counsel for respondent conto it, to discontinue such illegal and unsafe tend (1) that the Pacific Bank is a savings practices, and to conform to the require- bank; that the act of 1862, under which it ments of its charter, but that the bank re- was organized, declared that “the capital fused and neglected to comply with said or- stock and assets of the corporation shall be a der; that on said 23d day of June, 1893, the security to depositors who are not stockindebtedness of said bank was largely in holders,” and that such security is sufficient excess of the reasonable and actual value to prevent an attachment under section 538 of its assets; that the entire capital stock, of the Code of Civil Procedure; and (2) that, together with the surplus, had become com- at the time respondent moved to dissolve the pletely exhausted, and that the directors and attachment, the bank was in liquidation unstockholders neglected and refused to pay in der the bank commissioners' act, and that the said depleted stock, or any part of it, and judgment of the superior court in the case "that on said 230 day of June, 1893, said of People ex rel. Bank Commissioners v. PaPacific Bank was wholly insolvent and re- cific Bank, rendered November 3, 1893, mains so insolvent"; that the commissioners related back to the time the bank became reported the condition of the bank to the at- | insolvent, viz. June 23, 1893, which was torney general, as required by law; that prior to the attachment. said attorney general commenced an action Whether the Pacific Bank should be held in the superior court on the 14th day of Oc- to have been a commercial bank or a savings tober, 1893, entitled, “The People of the bank is an important question, in some asState of California v. The Pacific Bank, a pects affecting the settlement and adjustCorporation, et al.,” in which action it was ment of its affairs; but, so far as this appeal decreed on November 3, 1893, that said bank is concerned, I think it immaterial, and was insolvent, etc., and enjoining it and its therefore not necessary to be considered or officers from transacting any further busi- decided; for if it were beyond doubt or ness. The complaint in said action of Peo- question that it not only conducted its busiple v. Pacific Bank alleged substantially ness as a commercial bank, but was charthe facts stated in the foregoing affidavit of tered as such, I think the attachment was Mr. Gerberding, and, in addition, specified properly dissolved. Under the act creating particular acts of mismanagement and of a board of bank commissioners, and prescriblosses sustained by the bank, and its insol- ing their duties and powers (St. 1877-78, p. vency. The answer of the bank in that case 740), and the amendments thereof (St. 1887, denied all acts of fraud and mismanage- p. 90), the state not only requires all banks, ment, admitted its insolvency, and alleged including commercial as well as savings that the interest of the creditors and stock- banks, to report twice each year, under oath, holders required that the bank should be to said board, their financial condition, but enjoined from the transaction of any further through said board exercises the high prebusiness, and that its business and affairs | rogative power of visitation without notice, should be closed under the provisions of and of making an independent examination the bank commissioners' act. This answer, it of its books, papers, bonds, and all securi. was further alleged, was duly authorized by ties, “to ascertain the condition of every vote of the board of directors.

such corporation, its solvency, its ability to Appellant excepted to the reading of the fulfill all its obligations and report its consaid complaint, answer, and decree in sup- dition to the attorney general as soon port of said motion, upon the ground that practicable after such examination.” St. he was not a party to said action, and was 1857, p. 91, § 4. Section 11 of said act, as not bound by the proceedings therein. The amended (St. 1887, p. 91), further prescribing affidavits read by appellant in opposition the powers and duties of said board and of to the motion did not deny that the Pacific the attorney general, and the mode of liquiBank was insolvent on the 23d day of June, dation of insolvent banking corporations, is 1893, which was prior to the issuance of quoted in full in People v. Superior Court the attachment, nor that said bank was in- of City and County of San Francisco, 100 corporated under the act of 1862, providing Cal., at pages 111-114, and 34 Pac., at pages for the formation of corporations "for the 493 and 494, and need not be inserted here. accumulation and investment of funds and It will there be seen that if the commissioners savings" (St. 1862, p. 199), but alleged that find that the bank has been violating its charit conducted the business of a commercial ter or the law, or is conducting its business in bank, and no other, and advertised and held an unsafe manner, they shall by order direct itself out as "the oldest chartered commer- the bank to discontinue such practices; and cial bank on the Pacific coast"; that the if the bank refuses to comply with such or

as

der, and if it shall appear to the commission- the prey of the first creditors who should ers that it is unsafe for such bank to continue secure the issuance of attachments, and thus to transact business, they shall notify the permit its assets to be converted into money attorney general of such fact, who, after ex- by a still more expensive process, and that amination, in his discretion may commence the proceeds should be applied to the paysuit to enjoin and prohibit the transaction ment in full of these attachments, leaving of any further business, and if the court is other creditors, who, by reason of distance of opinion that it is unsafe for the parties in- or otherwise, should not be informed of the terested, or for such corporation, to continue bank's condition, or be able to secure the to transact business, and that such corpora- prompt issuance of an attachment, wholly tion is insolvent, he shall grant the injunc- without a right to share in its assets. The tion, and direct the bank commissioners to great care and supervision exercised by the take such proceedings against such corpora- state over banking corporations through the tion as may be decided upon by its credit- board of bank commissioners indicates a ors. This section further fixes the time different purpose than that the commencewithin which liquidation shall be accom- ment of proceedings by the state through the plished; that the commissioners shall have attorney general should be a mere signal to a general supervisory control thereof, may conveniently located creditors to absorb the extend the time for final settlement, shall bank's assets by means of writs of attachdesignate the number of officers and em- ment, to the exclusion of equally meritorious ployés necessary to close up the business creditors less favorably located. The direcof the corporation, and fix the salaries of tion of the statute is that if the court should the same; and imposes heavy penalties, by be of the opinion that it is unsafe for the corfine or imprisonment, or both, upon any poration to continue to transact such business, officer or employé of any insolvent corpora- | and that it is insolvent, an injunction shall tion mentioned in the act if they shall dis. be issued, and thereupon "said judge shall regard or refuse to obey the directions of the further direct said commissioners to take bank commissioners given in accordance such proceedings against such corporation as with the provisions of the act.

may be decided upon by its creditors"; thus It needs no argument to show that the ex- clearly showing that the creditors-all the ercise of the sovereign power of the state creditors—are interested in and affected by over such corporations in the manner above the proceedings in liquidation, and are to be indicated is intended for the protection, not equally protected. only of the stockholders, but especially for Appellant contends, however, that the right the protection of depositors and all others of attachment is a positive statutory right, transacting business with or through the and that the bank commissioners' act makes bank. In People v. Superior Court of City no provision for dissolving attachments lev. and County of San Francisco, supra, certain ied before the machinery of the act was put creditors of the Pacific Bank, the respond- in motion by the commencement of the acent here, filed a petition in insolvency against tion by the people. But, before the attach said bank, under the insolvent act of 1880; ment was levied, the bank had suspended and the case there was an application on and closed its doors. The affidavits in suprelation of the bank commissioners for a writ port of the motion not only state that fact, of prohibition to prevent the superior court but also that it was in fact insolvent, and from proceeding under the insolvent act these facts are not denied. Under these ciragainst the bank. After quoting said section cumstances, the right of attachment did 11 of the bank commissioners' act, the court not exist. Section 21 of said bank commissaid: “We have no doubt that this section sioners' act (St. 1877-78, p. 745) declares that was intended by the legislature to provide “all acts are hereby repealed in so far as for every case involving the winding up of they are inconsistent with the provisions of the business of a banking corporation, and this act.” It requires no argument to show that it necessarily supersedes the provisions that the right of attachment under the proof the insolvent act of 1880 so far as this visions of the Code of Civil Procedure is inclass of corporations is concerned.” This consistent with the machinery of the bank conclusion was approved in Long v. Superior commissioners' act, as well as with its obCourt, 102 Cal. 449, 36 Pac. 807. The case vious purpose and intent. The state never inof People v. Superior Court of City and tended that after the continued exercise of its County of San Francisco, supra, seems to high prerogative powers for the safety of all me to be conclusive of the question involved depositors and creditors, as well as stockin this case. If the bank commissioners' holders, its purpose should be thwarted by act operates to take banks out of the opera- the seizure of the assets of the bank by one tion of the insolvency act, the proceedings or more creditors, perchance through the under which, though summary and expen- connivance of one of its officers or employés. sive, result in the equal distribution of its In the later case of People's Home Sav. assets among its creditors, it is equally clear Bank v. Superior Court of City and County that it was not intended that the moment of San Francisco, 103 Cal. 27, 36 Pac. 1015, a bank closed its doors its assets should be case involving the construction of the

a

« ΠροηγούμενηΣυνέχεια »