Lane v. First National Bank

IN BANK. MOTION TO DISMISS DENIED. This cause is now here on a motion for an order dismissing the appeal. The transcript on appeal was filed in this court on June 21, 1928, and, under the rules, the defendants, as appellants, had 20 days thereafter in which to file their printed abstract and 20 days subsequent to the filing of the printed abstract in which to file appellants' brief. Instead of making application to this court for an order extending the time for filing said abstract and *Page 352 briefs, applications were erroneously made to and granted by the trial judge and they were later filed here within the time extended by the trial judge. It is obvious that the applications and extensions were made under a misapprehension of the meaning of § 554, O.L., which provides that under its provisions the time for filing "a transcript or such an abstract as the law or the rules of the appellate court may require, etc.," may be extended "by the trial court or the judge thereof, or the supreme court or a justice thereof," and, if filed within the time allowed, this court acquires jurisdiction of the cause and thereafter alone has authority to extend the time for filing printed abstracts and briefs. The record shows that appellants at all times exercised reasonable diligence and acted in entire good faith although mistakenly and would not have been in default if the trial court had had authority to make the orders. We think, therefore, that, in the interests of justice, the motion to dismiss the appeal should be denied and it is so ordered, respondent to have 20 days in which to file his opposing brief. MOTION TO DISMISS APPEAL DENIED. This is a suit brought by the plaintiff Clarence A. Lane to have certain alleged funds in the hands of H.D. Jackson, as receiver of the First National Bank of Vale, impressed with a trust in his favor. Plaintiff had decree and defendant appeals. AFFIRMED. The circumstances as detailed in the complaint, paragraphs 1, 2, 3, and 4, are formal. Paragraph 1 alleges that the First National Bank of Vale is a defunct banking corporation and that Ray T. Moe is the liquidating agent. This is admitted. Paragraph 2 alleges, and it is admitted, that the Equitable Trust company is a corporation engaged in *Page 353 general banking and trust business in Wilmington, Delaware. Paragraph 3 alleges, and it is admitted, that plaintiff is a nonresident of the state. Paragraph 4 alleges that at all the times and dates prior to October 24, 1924, the First National Bank of Vale was engaged in the general banking business, and that on the said last named date it became insolvent, failed and closed its doors, and its business affairs were placed in the hands of Ray T. Moe as receiver and liquidating agent. All this is admitted, except it is alleged in the answer that Jackson has been substituted as receiver instead of Moe as appears by the present title of the cause. Paragraph 5 alleges that on July 20, 1921, the Equitable Trust company acting for and on behalf of plaintiff transmitted to the defendant bank a promissory note in the principal sum of $2,500, which said note was dated at Vale, Oregon, May 6, 1921, payable to the order of plaintiff on or before January 15, 1922, with interest at 8 per cent per annum, with reasonable attorney's fees in case of suit. The note was signed by Arden A. Reed and Clara McN. Reed, was duly endorsed by plaintiff, and also on July 30, 1921, endorsed by the Equitable Trust company with directions to pay to the order of the First National Bank of Vale, Oregon, under which said endorsement so made by the trust company the said endorsement of plaintiff Clarence A. Lane was guaranteed and the trust company when so transmitting the note to defendant bank advised the said bank in writing that said note was sent to it for collection. To this paragraph the defendant answered admitting it to be true with the explanation, however, that the said note was secured by a duly recorded mortgage. *Page 354 Paragraph 6 of the complaint, from its importance here, we give in full. It is as follows: "That on and prior to the 21st day of October, 1921, Arden A. Reed, one of the makers and signers of said note had on deposit to his credit with said First National Bank a sum of money in excess of $2,591.68 and that on said last named date the said Arden A. Reed did pay to said First National bank for the account of plaintiff the full amount of principal and interest on said note in the total sum of $2,591.68 and did accomplish said payment by making, executing and delivering to said First National bank a check payable to the order of said bank, in said last named sum, whereupon, and on said 21st day of October, 1921, the said First National bank did charge said sum of $2,591.68 to the account of said Reed on its books, did stamp said check `Paid' and did subsequently return the same to said Reed with other checks drawn by said Reed and paid out of his said account with said bank, and that said bank did thereupon on said date prepare a demand certificate of deposit in the said sum of $2,591.68 and did make the same payable to the order of said First National bank for the account of plaintiff, but that said bank instead of remitting said amount so collected by it from said Reed for the account of plaintiff either direct to plaintiff or to his said agent, Equitable Trust company did hold said certificate of deposit and said fund so paid to it by said Reed, and in so doing did constitute itself and did thereupon become a bailee and trustee of said fund for plaintiff." To this paragraph defendants answered as follows: "That as to the allegations and averments contained in paragraph `6' of said complaint, these answering defendants admit, deny, qualify and explain as follows, to wit: "These answering defendants admit. `That on and prior to the 21st day of October, 1921, Arden A. Reed, *Page 355 one of the makers and signers of said note, had on deposit to his credit with said First National bank a sum of money in excess of $2,591.68,' but allege and aver that on said October 21st, A.D., 1921, the said Arden A. Reed, did have on deposit as a checking account in said bank, a sum in excess of $2,591.68, and on said date, the said Arden A. Reed, did duly draw and make his checks in usual form, against said checking account and delivered the same to the said The First National Bank of Vale, Oregon, said check being payable to the order of said The First National Bank of Vale, Oregon, and for the sum of $2,591.68, and said check was for the amount then due and owing on the indebtedness as evidenced by said note and mortgage, and was delivered to the said The First National Bank of Vale, for the purpose of paying and discharing such indebtedness but that the said Arden A. Reed, demanded and requested that before the said The First National Bank of Vale, remitted the amount of said check for said indebtedness that the said bank secure and deliver to him a satisfaction piece discharging said mortgage of record, the said bank not having any such satisfaction piece in its possession, and that the said bank did charge the said amount of $2,591.68, to the account of said Arden A. Reed on its books, did stamp said check `Paid,' and did subsequently return the same to said Reed with other checks drawn by said Reed upon his said account, and that said bank did, on said October 21st, A.D., 1921, for the purpose of keeping the account of said bank, in the matter of the handling and holding of said sum of $2,591.68, make a certificate of deposit in usual form, in the said sum of $2,591.68, of the following tenor, to wit: "First National Bank "No. 1097 Vale, Oregon, Oct. 21, 1921. Arden A. Reed has deposited in this bank, twenty-five hundred ninety-one dollars sixty-eight cents ($2,591.68) payable to the order of First *Page 356 Nat. Bank of Vale, in escrow for C.A. Lane, on the return of this certificate properly endorsed. Not subject to check. A.W. Reed, Cashier. "That on said October 21st, A.D., 1921, the said The First National Bank of Vale, being without said satisfaction piece, was unable to deliver the same to the said Arden A. Reed, did retain and hold said funds under said method of bookkeeping awaiting the arrival and receipt of said satisfaction piece from the holder and owner of said note and mortgage, which the said bank had, prior thereto, requested the said holder and owner of said note and mortgage to execute and deliver to said bank for its delivery to the said Arden A. Reed, but which satisfaction was not received by said bank until after October 24th, A.D., 1921, the date of the closing of the said First National Bank of Vale, Oregon. "That the assets of said The First National Bank of Vale, were not augmented or increased by said transaction. "That as to each and every other allegation in said paragraph `6' of said complaint contained, these answering defendants deny the same, and allege that it was the intention, desire and purpose, so expressed by the said Arden A. Reed, and understood and agreed by the officers of said bank, that the said bank was not to remit or part with the control and custody of the amount as evidenced by said certificate of deposit until such time as it had received and delivered to the said Arden A. Reed, the said note and, mortgage together with the satisfaction of said mortgage." Paragraph 7 of the complaint is as follows: "That on the 21st day of October, 1921, when said defendant bank made said collection from said Reed, as aforesaid, it, the said First National Bank of Vale, Oregon, was insolvent and that at said time it, the said First National bank, and its officers knew of the insolvent condition of said bank; that at said time the said Equitable Trust company was in a sound and solvent condition and that said First National bank, *Page 357 instead of remitting the said fund so collected by it from said Reed to plaintiff or to his agent, Equitable Trust company, and at said time, knowing of the insolvent condition of the said First National bank, the said First National bank did fail and refuse to remit said fund or any part thereof to plaintiff or to his said agent, the Equitable Trust company, but did hold and retain said fund until the said First National bank failed and closed its doors and was placed in the charge of said receiver on the 24th day of October, 1921, as aforesaid." The defendants' answer substantially denied this paragraph. Paragraph 8 of the complaint is as follows: "That at the time of the payment of said note by said Reed and at the date when said First National bank failed and closed its doors the said bank had in its possession the said sum of $2,591.68 or had in its possession valid claims, accounts receivable, demands, dues and credits from solvent persons and corporations amply sufficient to have enabled the said defendant, First National bank, to have remitted said fund so collected by it to plaintiff or to his agent, the said Equitable Trust company, and that the said Ray T. Moe, as receiver of said bank, now has in his possession moneys and dues, credits, claims and demands against solvent corporations and individuals to an extent amply sufficient to enable the said receiver to pay over and remit said fund with interest from the date of said collection to plaintiff." The defendants answered denying the allegations of paragraph 8, and alleged that at the time of closing its doors on October 24, 1921, there was in the bank only $1,118.70, and that there was no other sum that came into the hands of the receiver. Paragraph 9 alleges the repeated demand on behalf of plaintiff for the amount collected from Arden A. Reed and the refusal of defendants to comply with such request. This paragraph is admitted. *Page 358 Paragraph 10 alleges that plaintiff has no adequate remedy at law and prays that a trust be impressed upon the assets of the bank in the hands of the receiver to be applied on his claim, and that the receiver be adjudged a trustee for plaintiff and be restrained from so disposing of the assets as to diminish them to the prejudice of plaintiff. The defensive matter in the answer being put at issue by an appropriate reply, the court, after hearing the testimony, found generally along the line of plaintiff's complaint, rendered a decree in his favor occordingly and from which decree defendant appeals. AFFIRMED. REHEARING DENIED.