Greenawalt v. Wilson

52 Kan. 109

• Court: Supreme Court of Kansas
• Decided: July 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

HojrtoN, C. J.:

A. S. Wilson was appointed receiver of the First National Bank of Greenleaf, in this state, on October 18,1888, and duly qualified as such receiver the next day. As receiver, he immediately took possession of the assets of the bank, including the horse in controversy, removing ‘the same from Greenleaf to Washington, where he lived. On November 22, 1888, Wilson was discharged as receiver by an order of the court appointing him, and directed to return the property taken by him to T. J. C. Smith, president of the. insolvent bank. This order was excepted to, and upon the proceedings in error was reversed in this court. (Elwood v. National Bank, 41 Kas. 475.) After the order of discharge was entered, but before it was reversed, Wilson returned the' horse in dispute to a livery stable in Greenleaf, subject to Smith’s order, and the horse remained there until December 8, 1888, at which time Smith, as president, and E. Nims, as cashier, of the insolvent bank, attempted to sell the horse, without authority of the board of directors of the bank. Nims bid in the horse upon a debt, which he claimed for feeding and keeping him, and credited the amount of his bid of $250 upon his account therefor.- At the time he was a debtor of the bank in the sum of $638. On the lOfchi of December, 1888, Wilson was reinstated as receiver, and in a day or two demanded of Smith the return of the assets of the bank, including the horse in controversy. In February, 1889, Nims sold a half interest in the horse to Joseph C. Greenawalt, then residing in Atchison county.

4' enforcement yeraion7con" It is urged that the trial court committed error in instructing the jury that no sale was made of the horse by Nims under the lien he claimed thereon for keeping, feeding and .•taking care of the same. There was no evidence showing or tending to show that Nims made any sale in accordance with the provisions of the statute, and therefore the court properly instructed the jury. (Gen. Stat. of 1889, ¶¶ 3664, 3669, 3673; 1 Jones, Liens, §§685, 1034; Longstreet v. Phile, 39 N. J. Law, 63.) As tending to show that Nims was indebted to the bank largely in excess of his supposed lien, the court committed no error in receiving in evidence the judgment in favor of A. S. Wilson, as receiver, v. E. Nims, and also the note and account owned by the bank, and upon which Nims was liable. (Gardner v. Risher, 35 Kas. 93; St. L. Ft. S. & W. Rld. Co. v. Chenault, 36 id. 51, 55.

2' Slnd-?e7usli. The claim that there was no demand before the commencement of the action is not tenable. There was some evidence tending to show a sufficient demand, but this court has decided that where a defense is founded upon title in a defendant, and the right of possession incident thereto, no proof of demand and refusal is required. (Raper v. Harrison, 37 Kas. 243; Schmidt v. Bender, 39 id. 437.)

íow?d.fo1" The pretended sale of the horse on December 8, 1888, was without any authority of the bank, and neither Smith, as president, nor Nims, as cashier, could make such a sale of the bank’s property. (Asher v. Sutton, 31 Kas. 286; National Bank v. Drake, 29 id. 311; Morse, Banks, 107.)

collateral attack. It is also insisted that, although A. S. Wilson was a resident of Wasington county, in this state, when he was appointed receiver, and also when he’ commenced this action, that, as he became a nonresident before the trial, his powers as receiver had ceased; that the office was vacant, and that he had no authority to recover any judgment. The appointment of a receiver cannot be assailed in a collateral proceeding. Wilson was receiver in fact, and his r _ ° _ ’ appointment and retention in office are conclusive until set aside. His authority was continued until properly annulled. Wan Fleet, Coll. Att., § 3; Cadle v. Baker, 20 Wall. 650; Richards v. People, 81 Ill. 551-554; Cook v. Citizens’ Bank, 73 Ind. 256, 259.

We have examined the other alleged errors discussed, but find no merit therein.

The judgment will be affirmed.

All the Justices concurring.