North American Building-Loan Ass'n v. Richardson

WASTE, C. J.

Acting under the provisions of the Building and Loan Association Act (Stats. 1931, p. 483), the respondent Building and Loan Commissioner of this state assumed possession and control of the property, business and assets of the appellant North American Building-Loan Association. Thereafter, and pursuant to section 13.12 of

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the act, the appellant instituted the present action in the superior court to enjoin the respondent commissioner from proceeding further in the handling of its business. Obviously, the appellant did not prevail in the court below, the court finding, among other things, that the value of its assets after deducting its liabilities, including its outstanding investment certificates and shares, was at least $150,000 less than the aggregate par value of its outstanding stock, and that the continued possession and control of appellant’s property, business and assets by the respondent commissioner is for its best interests and for the best interests of its creditors. The appellant appeals from the judgment based on these findings. The transcript to be used on the appeal is now on file, but the briefs, as yet, have not been filed.

In this state of the record the appellant presents this motion for an allowance of costs on appeal in the amount of $486.80, representing the cost of the preparation of the transcript already on file. It is requested that this sum be allowed as a charge against the funds of the appellant now in the hands of the respondent commissioner.

In opposition to the motion there has been filed herein an affidavit by the custodian of the appellant association, duly appointed by the respondent commissioner, wherein it is averred that the respondent commissioner is proceeding with the liquidation of the appellant association, that the association has been for more than a year “hopelessly insolvent and unable to make good its obligations”, that the appeal herein is “frivolous and without merit”, that continued resistance in this manner is materially harming the creditors of the association, that the appeal is being perfected “for the sole purpose of annoying respondent commissioner . . . with the idea in mind of harassing and annoying him, and delaying and hindering the liquidation of said insolvent and defunct association”, that the directors of the appellant association “represent the guaranty stockholder group, upon which the law places a stockholders’ liability”, that said “group have not the best interests of the twenty-two thousand creditors at heart”, and that the appeal already has resulted in an additional drain upon the assets of the association and has caused the trustees under certain deeds of trust, constituting a part of the assets of the association, to refuse to proceed with sales under said deeds of trust. The