Bork v. Richardson

PULLEN, P. J. This is an appeal from an order establishing certain claims as preferred, and directing the superintendent of banks in charge of liquidation to pay the same as such. The First Exchange State Bank hereinbefore referred to as the bank, was closed for liquidation by the superintendent of banks on January 14, 1932, pursuant to the provisions of section 136 of the Bank Act. (Deering’s Gen. Laws, Act 652.) On July 19, 1934, Friend W. Richardson succeeded the prior superintendent of banks, and thereafter became and ever since has been superintendent of banks of the state of California.

We are here concerned with nine claims, seven being filed by the Bank of America National Trust and Savings Association, one by Henry J. Bork, and one by Miss Louie E. Raymond. The petitions on these claims were consolidated for hearing.

Appellant makes some point of the fact that in the proof of claim filed by Bork no preference was asserted on his behalf until in May, 1935, at which time respondent filed his petition and order to show cause directing payment of his claim as preferred. The claims of the Bank of America were asserted as a preference at the time they were filed, as was likewise the claim of Miss Louie Raymond. In view of the principle enunciated in the case of Burket v. Bank of Hollywood, 9 Cal. (2d) 113 [69 Pac. (2d) 421], which we will later refer to, it is immaterial whether the claims were originally filed as preferred or general claims.

It is contended by respondents that all of the deposits in the possession of the bank at the time of the closing of its doors belonging to these petitioners herein were held for the benefit of petitioners, and as such constitute trust funds.

In November, 1932, November, 1933, and in October, 1934, in proceedings relating to matters in liquidation of the bank, payments of dividends were authorized by the superintendent of banks in the amounts of 10 per cent, 20 per cent and 10 per cent, respectively, on claims of all general creditors, including petitioners. In 1936 petitioners applied to the court for an order establishing their claims as preferred.

It is the contention of appellant herein that claimants were barred after a delay in amending their claims to have the same given preference and priority over general creditors of approximately three and one-half years, where dividends [535]have been paid and there will not be sufficient funds to pay all creditors in full, asserting that such procedure was barred by section 136 of the Bank Act as amended in 1935, and that such delay had prejudiced the superintendent of banks in charge of liquidation so as to bar recovery, and that petitioners were guilty of laches and inexcusable neglect.