State ex rel. Spillman v. Platte Valley State Bank

259 N.W. 646, 128 Neb. 567, 1935 Neb. LEXIS 79

Opinion

Good, J.

This is an appeal from a judgment dismissing the petition of Fidelity & Deposit Company of Maryland, intervener, seeking allowance of a claim against an insolvent state bank, and to impréss a trust on the bank’s assets in the hands of the receiver. This case was briefed and argued with State v. Platte Valley State Bank, ante, p. 562. The pertinent facts in each case are in all respects similar.

The city of North Platte had a deposit of $17,029.27 in the bank when it closed. L. E. Mehlmann was city treasurer and also assistant cashier of the bank. Within the time fixed by the court’s order for filing of claims, Mehlmann, on behalf of the city, filed a claim for the deposit, but not claiming it as a trust fund. The court passed upon and allowed the claim as a deposit, with the preference accorded by statute to claims of depositors not otherwise secured. The allowance of this claim amounted to a judgment. It was neither modified nor appealed from, and several terms of court have passed. Later the city sued Mehlmann and intervener, as surety on his bond, and obtained a judgment for the amount then due it from the bank. Intervener paid this judgment and took an assignment of the city’s claim, and thereafter obtained an order of court permitting it to intervene and file the claim some four years after its prior adjudication.

For the reasons given in State v. Platte Valley State Bank, ante, p. 562, the judgment of the district court is right and is

Affirmed.