CAMPBELL, J.
This is an action to recover the possession of two certain bonds, a City of Marshfield
bond for $500, bearing six per cent interest, and a Morrow county bond, bearing five and one-half per cent interest, which plaintiff alleges he delivered for safekeeping only to the Junction City State Bank at Junction City, Lane county, Oregon, on October 22, 1929, under the express agreement and understanding that they should be delivered to plaintiff on demand. On February 11, 1932, the bank became insolvent and was taken over by defendant A. A. Schramm, state superintendent of banks, for the purpose of liquidation. Subsequent to that date, plaintiff demanded the return of said bonds of defendant, but was refused. On June 16, 1932, plaintiff filed with defendant A. A. Schramm “his petition in writing wherein and whereby plaintiff demanded that the bonds be delivered to him”, but that defendant refused to comply with his demand. He then alleges that said bonds are in possession of defendant A. A. Schramm as such superintendent. There is an allegation that the bank collected some interest and there are interest coupons attached to and a part of the bonds he seeks to recover. He further alleges that defendant Schramm was duly notified of his intention to begin this action more than 10 days before the complaint was filed.
Defendants’ answer amounted to a general denial except as admitted in the further and separate answer and defense. It is then alleged in the answer in effect: The organization of the bank; its insolvency; the assumption of control on February 11, 1932, by the superintendent of banks .for the purpose of liquidation; that the said superintendent of banks published and mailed the notices required by law for the time and in the manner prescribed by statute; the date of the first publication of said notices was February 5, 1932, and the last publication May 26,1932; that on June 16,1932,
plaintiff filed a claim with defendant A. A. Schramm claiming to he the owner of the two bonds described in the complaint; on the same date filed in the circuit court for Lane county his duly “verified petition and claim for preference wherein plaintiff asserted a preferred claim for said two bonds” and on said date filed a duplicate of said petition with defendant A. A. Schramm; that this claim was thereafter rejected and the petition denied by defendant Schramm; notice of the rejection of said claim was duly mailed by registered mail to plaintiff. Plaintiff on September 2, 1932, filed in said circuit court a motion for review of the action of defendant A. A. Schramm in rejecting said claim; defendant A. A. Schramm filed a motion to dismiss said motion for review and that thereafter said circuit court dismissed said proceeding.
It is further alleged that no other proceedings were taken by plaintiff; that he failed to file with the superintendent of banks any petition for preference within 90 days from the date of the first publication of the notice given by the superintendent as above alleged; that by reason of the above proceedings initiated by plaintiff before the superintendent of banks and in the circuit court plaintiff should now be estopped from prosecuting this action.
Defendant further alleges that the foregoing proceedings before the superintendent of banks and in the circuit court is an adjudication of all the questions presented by plaintiff’s complaint in the instant case. Defendant further pleads that this action has not been commenced within the time limited by statute.
Thereafter, plaintiff duly filed a reply denying all the material allegations of the new matter in the answer.
"When the canse came on for hearing, defendant moved for a judgment on the pleadings which motion was allowed in the following order entered:
“* * * and it appearing to the Court that plaintiff’s action was not commenced within the time provided by Chapter 278 of the Laws of Oregon for 1931, and therefore was not entitled to maintain this cause,
“IT IS THEREFORE CONSIDERED AND ORDERED that said motion *
*
* be * * * sustained and judgment is hereby rendered in favor of defendants * * * for their costs and disbursements.”
The only question presented by the pleadings and the briefs upon this appeal is, whether a person attempting to recover personal property from an insolvent bank which has been delivered to the bank as bailee or for safekeeping is required to file a claim for preference with the superintendent of banks within the meaning of § 22-2009, Oregon Code 1930, as amended by Chapter 278, Oregon Laws, 1931.
The plaintiff contends that he is not now claiming, nor did he at any time claim, a preference as to any of the
assets
of the bank. Defendant in his answer claims that plaintiff did file such a claim. Plaintiff in his reply denied the allegations of the answer.
The statute prescribes the duty of the superintendent of banks in administering his possession and control of an insolvent bank in respect to safety deposit boxes and personal property in possession of the bank as bailee.
‘ ‘ Should any bank, at the time the superintendent of banks takes possession of its property and business, have in its possession, as bailee, for safekeeping and storage, any * * * bonds, * * * the superintendent of banks may at any time thereafter cause to be mailed to the person claiming to be or appearing
upon its books to be tbe owner of such property, * * * a notice in writing * * * directed to such person at his postoffice address as recorded upon its books, notifying such person to remove, within a period fixed by said notice not less than 90 days from the date thereof, all such personal property. Upon the date fixed by said notice, the contract, if any, between such person and the bank for the storage of said property * * * shall cease and determine. * * * If any such bonds, * * * be not removed within the time fixed by the notice of the superintendent of banks, he shall retain the same for a period of six months thereafter unless removed by the owner prior thereto and thereafter may sell the same under the direction of the circuit court and shall hold the proceeds of such sale for the benefit of the owner of such bonds * * *. Two years after the final order closing the liquidation of the bank * * * any such funds which have not been claimed may be disposed of in the same manner as this act prescribes for unclaimed dividends and deposits. * * #.” Oregon Code 1930, § 22-2016.
The statute further provides that unclaimed deposits and credits after a certain length of time shall escheat to the state: Oregon Code 1930, § 22-2018.
If the allegations in plaintiff’s complaint are true, the bonds described therein never were and never would become a part of the assets of the bank.
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CAMPBELL, J.
This is an action to recover the possession of two certain bonds, a City of Marshfield
bond for $500, bearing six per cent interest, and a Morrow county bond, bearing five and one-half per cent interest, which plaintiff alleges he delivered for safekeeping only to the Junction City State Bank at Junction City, Lane county, Oregon, on October 22, 1929, under the express agreement and understanding that they should be delivered to plaintiff on demand. On February 11, 1932, the bank became insolvent and was taken over by defendant A. A. Schramm, state superintendent of banks, for the purpose of liquidation. Subsequent to that date, plaintiff demanded the return of said bonds of defendant, but was refused. On June 16, 1932, plaintiff filed with defendant A. A. Schramm “his petition in writing wherein and whereby plaintiff demanded that the bonds be delivered to him”, but that defendant refused to comply with his demand. He then alleges that said bonds are in possession of defendant A. A. Schramm as such superintendent. There is an allegation that the bank collected some interest and there are interest coupons attached to and a part of the bonds he seeks to recover. He further alleges that defendant Schramm was duly notified of his intention to begin this action more than 10 days before the complaint was filed.
Defendants’ answer amounted to a general denial except as admitted in the further and separate answer and defense. It is then alleged in the answer in effect: The organization of the bank; its insolvency; the assumption of control on February 11, 1932, by the superintendent of banks .for the purpose of liquidation; that the said superintendent of banks published and mailed the notices required by law for the time and in the manner prescribed by statute; the date of the first publication of said notices was February 5, 1932, and the last publication May 26,1932; that on June 16,1932,
plaintiff filed a claim with defendant A. A. Schramm claiming to he the owner of the two bonds described in the complaint; on the same date filed in the circuit court for Lane county his duly “verified petition and claim for preference wherein plaintiff asserted a preferred claim for said two bonds” and on said date filed a duplicate of said petition with defendant A. A. Schramm; that this claim was thereafter rejected and the petition denied by defendant Schramm; notice of the rejection of said claim was duly mailed by registered mail to plaintiff. Plaintiff on September 2, 1932, filed in said circuit court a motion for review of the action of defendant A. A. Schramm in rejecting said claim; defendant A. A. Schramm filed a motion to dismiss said motion for review and that thereafter said circuit court dismissed said proceeding.
It is further alleged that no other proceedings were taken by plaintiff; that he failed to file with the superintendent of banks any petition for preference within 90 days from the date of the first publication of the notice given by the superintendent as above alleged; that by reason of the above proceedings initiated by plaintiff before the superintendent of banks and in the circuit court plaintiff should now be estopped from prosecuting this action.
Defendant further alleges that the foregoing proceedings before the superintendent of banks and in the circuit court is an adjudication of all the questions presented by plaintiff’s complaint in the instant case. Defendant further pleads that this action has not been commenced within the time limited by statute.
Thereafter, plaintiff duly filed a reply denying all the material allegations of the new matter in the answer.
"When the canse came on for hearing, defendant moved for a judgment on the pleadings which motion was allowed in the following order entered:
“* * * and it appearing to the Court that plaintiff’s action was not commenced within the time provided by Chapter 278 of the Laws of Oregon for 1931, and therefore was not entitled to maintain this cause,
“IT IS THEREFORE CONSIDERED AND ORDERED that said motion *
*
* be * * * sustained and judgment is hereby rendered in favor of defendants * * * for their costs and disbursements.”
The only question presented by the pleadings and the briefs upon this appeal is, whether a person attempting to recover personal property from an insolvent bank which has been delivered to the bank as bailee or for safekeeping is required to file a claim for preference with the superintendent of banks within the meaning of § 22-2009, Oregon Code 1930, as amended by Chapter 278, Oregon Laws, 1931.
The plaintiff contends that he is not now claiming, nor did he at any time claim, a preference as to any of the
assets
of the bank. Defendant in his answer claims that plaintiff did file such a claim. Plaintiff in his reply denied the allegations of the answer.
The statute prescribes the duty of the superintendent of banks in administering his possession and control of an insolvent bank in respect to safety deposit boxes and personal property in possession of the bank as bailee.
‘ ‘ Should any bank, at the time the superintendent of banks takes possession of its property and business, have in its possession, as bailee, for safekeeping and storage, any * * * bonds, * * * the superintendent of banks may at any time thereafter cause to be mailed to the person claiming to be or appearing
upon its books to be tbe owner of such property, * * * a notice in writing * * * directed to such person at his postoffice address as recorded upon its books, notifying such person to remove, within a period fixed by said notice not less than 90 days from the date thereof, all such personal property. Upon the date fixed by said notice, the contract, if any, between such person and the bank for the storage of said property * * * shall cease and determine. * * * If any such bonds, * * * be not removed within the time fixed by the notice of the superintendent of banks, he shall retain the same for a period of six months thereafter unless removed by the owner prior thereto and thereafter may sell the same under the direction of the circuit court and shall hold the proceeds of such sale for the benefit of the owner of such bonds * * *. Two years after the final order closing the liquidation of the bank * * * any such funds which have not been claimed may be disposed of in the same manner as this act prescribes for unclaimed dividends and deposits. * * #.” Oregon Code 1930, § 22-2016.
The statute further provides that unclaimed deposits and credits after a certain length of time shall escheat to the state: Oregon Code 1930, § 22-2018.
If the allegations in plaintiff’s complaint are true, the bonds described therein never were and never would become a part of the assets of the bank. If the superintendent of banks, after he assumes control of an insolvent bank, fails and refuses to deliver to the owner property held by the bank as bailee, the statute (Oregon Code 1930, § 22-2009, as amended by Chapter 278, Oregon Laws, 1931) does not protect him against an action for claim and delivery by the owner of such property nor does it limit the time in which such action may be brought for the recovery thereof. It is not a claim for preference on the assets of the bank. If plaintiff deposited these bonds with the bank merely for safekeeping then the bank was acting purely as bailee
for plaintiff:
American Can Company v. Schramm,
137 Or. 328 (2 P. (2d) 924).
Section 22-2009, Oregon Code 1930, as amended by § 29 of Chapter 278, Oregon Laws, 1931, provides:
“ * * * All claims of any kind or nature must be filed with the superintendent of banks, and if a claimant asserts a preference, he shall file in addition to his said verified claim, a verified petition for preference which must state the grounds for preference. Any such petition for preference or prior lien on any of the assets of such bank or trust company over the claims of other depositors or creditors must be filed * * *.”
This section also provides for the manner in which such claims for preference shall be disposed of and for review by the circuit court of the action of the superintendent of banks by any one interested, and then provides:
“The summary procedure of filing of claims and petitions for preference, and of the determination thereof by the superintendent of banks, and of the commencement of action thereof, and of review on
petitions for preference
by the said circuit court, and of appeals therefrom to the supreme court, shall be exclusive of all other legal or equitable remedies, either by action or suit, which previously hereto prevailed under the common law.” [Italics ours.]
This summary proceeding was not intended to apply to such a claim as plaintiff presents in his complaint.
The fact that plaintiff filed a verified petition claiming said property in the circuit court and a duplicate thereof with the superintendent of banks and after rejection of his claim by the superintendent of banks filed a motion in the circuit court for review of said action of the superintendent of the bank, and said motion was dismissed by the circuit court, would not estop plaintiff from asserting his rights in law or equity for
the recovery of trust property:
American Can Company v. Schramm,
supra. Such summary proceedings obtain only as to depositors and creditors of the bank and could not be
res adjudicata
of the matters involved in the complaint herein. Plaintiff was not a depositor in the bank: Oregon Code 1930, § 22-2001. He was not a creditor of the bank:
American Can Company v. Schramm,
supra.
The questions of fact, put at issue by the pleadings, to be determined in this action are, (1) was plaintiff entitled to the immediate possession of the personal property described in his complaint at the time he brought his action and is he still so entitled; (2) is that possession being wrongfully withheld from him by the defendants in Lane county, Oregon; (3) the value of the property so withheld?
It is stated in the brief of respondents, but denied by appellant, that the parties stipulated the facts. No such stipulation appears in the record. It is stipulated that plaintiff did not file a claim for the property in controversy with the superintendent of banks within the 90-day period in accordance with § 22-2009, supra.
The judgment will be reversed and the cause remanded for such further proceedings as may not be inconsistent with this opinion. It is so ordered.
Bean, Bailey and Kelly, JJ., concur.
Petition for rehearing denied February 5, 1935