Central National Bank v. First National Bank

219 N.W. 894, 117 Neb. 161, 1928 Neb. LEXIS 24

• Court: Nebraska Supreme Court
• Decided: June 8, 1928
• Docket: No. 25214
• Status: Published

Opinions

Howell, J.

This case was appealed from a decree of the lower court impressing a trust,„in favor of the'Central National Bank of Lincoln, upon the assets of the First National Bank of Gering, in the hands of Charles F. Lyman, receiver, growing out of four notes sent by the Lincoln bank to the Gering bank, while open for business, for collection and remittance of proceeds.

After being twice argued orally here, Good, J., wrote an opinion (115 Neb. 444), in which Dean, Thompson and Eberly, JJ., concurred, reversing the lower court over a dissenting opinion by Rose, J. (115 Neb. 451), in which Goss, C. J., and Day, J, concurred. Eberly, J., wrote a separate concurring opinion (115 Neb. 457). After a third oral argument, Rose, J., delivered an opinion (115 Neb. 472) in which the former opinion was overruled, to which Good, Thompson and Eberly, JJ., dissented (115 Neb. 478). Since that time, Day, J., died and the writer has been added to the court in his stead. A fourth oral argument has been made to the court as it is at present constituted.

The writer has spent a prodigious^amount of time in the examination of the record, numerous briefs, adjudicated cases and the several opinions written by members of this court in this case, and is not disposed to add very much to its literature. To harmonize the multiplied decisions of state and federal courts would be an impossible task.

The alleged trust fund has to do with the assets of an insolvent national banking institution being administered by a receiver under laws of congress. Sections 3234, 5236, U. S. Rev. St. (1878), provide for winding up the affairs of such banks and for a ratable distribution of their assets among creditors..What are assets presents a federal question which necessarily must be determined by the national courts or by rules approved by them. Empire State Surety Co. v. Carroll County, 194 Fed. 593, 603 (5). The same case holds: “It is indispensable to the maintenance by a cestui que trust of a claim to preferential payment out of the proceeds of the estate of 'an insolvent that clear proof be made that the trust property or its proceeds went into a specific fund or into a specific identified piece of property which came to the hands of the receiver, and then the claim can be sustained to that fund or property only, and only to the extent that the trust property or its proceeds went into it. It is not sufficient to prove that the trust property or its proceeds went into the general assets of the insolvent estate and increased the amount and value thereof which came to the hands of the receiver.” It is supported by State Bank of Winfield v. Alva Security Bank, 232 Fed. 847, Dudley v. Richards, 18 Fed. (2d) 876, and other cases.

The writer has been very reluctantly driven to the foregoing conclusions as to national banks, but withholds commitment as to trust funds not imperatively ruled by federal law. The judgment of the district court is reversed and the cause remanded.

Reversed.

Goss, C. J., and Dean, J., dissent.