Lanz v. Fresno Loan & Savings Bank

GAROUTTE, J. —Plaintiff brought this action to recover from the defendant certain sums of money deposited with it. The answer alleged that the deposits were made under and in-accordance with a by-law of the defendant which required notice to the bank of any intended withdrawal of moneys deposited. It was further alleged that the defendant was visited by the bank commissioners, who required the defendant to levy an assessment upon its capital stock of ten dollars per share, and use the funds thus raised in the conduct of its business; that defendant refused to comply with this direction, and the bank commissioners “advised and directed defendant to liquidate and wind up its affairs”; that defendant closed its doors to all new business and proceeded to wind up its affairs, and is still doing so under the direction of said bank commissioners.

[457]The court, after finding in substance the foregoing facts, further found: “That at all times since the defendant closed its doors the officers of the bank have had entire charge and control of the collection of all debts, securities, and assets, and the disbursement of the same, and a large amount of money has been since said time collected by the officers of said bank and disbursed to various depositors; and securities have, from time to time, been turned over to creditors of the bank in payment of their claims; that no payment has been made to plaintiff, but that defendant has, however, from time to time, received advices and instructions from the bank commissioners.” From the foregoing facts the court declared, as a conclusion of law, that plaintiff was entitled to judgment, which was accordingly entered, and this appeal is taken therefrom.

There is no question raised as to the validity of the indebtedness of the bank to plaintiff, but it is insisted upon the part of the bank that it is in process of liquidation, and therefore cannot be sued by a depositor. In view of the findings of fact made by the trial court to the effect that the bank had collected and disbursed to various depositors large sums of money, and that securities have been, from time to time, turned over to various creditors of the bank in payment of their claims, and that plaintiff has been entirely overlooked in the making of these disbursements, it would seem that there should be some legal remedy which he might invoke to secure his rights. We see no importance to be attached to the demand of the bank commissioners that the bank levy an assessment of ten dollars per share upon its stock, and a refusal upon its part to comply with the demand. That matter appears to be wholly immaterial here. IT’either do we attach any importance to the mere advice or direction of the bank commissioners given to the bank to wind up its affairs. We do not see that the bank stands in a different position as to the law when it proceeds to liquidate upon the advice and direction of the commissioners to that end, from that which it occupies, when, realizing its unfortunate condition, it proceeds to liquidate without advice or direction.