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to make written findings of facts and trier of facts will not be disturbed conclusions of law.

when they are arrived at upon disBonds, 8 633 — of bank comptroller puted evidence, or when, undisputed, liability on.

reasonable minds may reasonably 8. The comptroller of banks, whose draw therefrom different inferences duty is to take possession of a bank and conclusions. if it appears unsafe to permit it fur- Banks, § 41 power to permit susther to transact business, is not liable

pended bank to resume business. on his official bond for losses caused

10. A statutory provision requiring to depositors by permitting an insol

the comptroller of banks to take posvent bank to continue in business after receiving the report of a compe

session of the effects of a bank if it tent accountant that the bank is sol

appears to be unsafe to permit it furvent and may safely be permitted to

ther to transact business, and hold continue business if its depleted re

possession until otherwise ordered by serve is made good, which is done, if

the court, and notify the attorney the beliefs and standards in financial general, who shall institute court procircles prevalent at the time indicate ceedings, with power in the court to that the ordinarily prudent and cau- order a return of the assets or the tious person would have taken the liquidation of the bank, does not presame course under the circumstances. vent his permitting a suspended bank Appeal, § 660 when verdict inter- to resume business, if, after examinafered with.

tion, he deems it safe to permit it to 9. The verdict and decision of the

do so.

APPEAL by plaintiffs from a judgment of the Superior Court for Maricopa County (Stanford and Struckmeyer, JJ.) in favor of defendants in an action brought to recover losses alleged to have been caused by the negligence of the defendant bank comptroller in permitting an insolvent bank to remain open. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Armstrong, Lewis & Kra- v. Citizens Trust & Sav. Bank, 73 Ind. mer and James R. Moore, for appel. App. 76, 123 N. E. 130; State v. Kelly, lants :

27 N. M. 412, 21 A.L.R. 156, 202 Pac. The superintendent of banks was re- 524; State ex rel. Hopkins v. Wilson, quired by law, when it appeared to 108 Kan. 641, 196 Pac. 758. him that the Exchange Bank of Peoria The superintendent of banks at all was insolvent and it was unsafe for times subsequent to the 22d day of it to continue to transact business, March, 1921, knew that the Exchange immediately to suspend its business Bank of Peoria was insolvent and in and take exclusive possession and an unsafe condition to continue to control of its business, property, and transact a banking business. effects, and notify the governor and People v. Bank of San Luis Obispo, attorney general of his action, and to 154 Cal. 194, 97 Pac. 306; 3 R. C. L. hold possession of the same until the p. 492, $ 120; Skarda v. State, 118 Ark. order of court provided for in § 176, 175 S. W. 1190, Ann. Cas. 1916E, Civil Code of 1913.

586; Ellis v. State, 138 Wis. 513, 20 Re Murray Hill Bank, 153 N. Y. L.R.A. (N.S.) 444, 131 Am. St. Rep. 199, 47 N. E. 298; McDavid v. Bank 1022, 119 N. W. 1110; Griffin v. State, of Bay Minette, 193 Ala. 341, 69 So. 142 Ga. 636, L.R.A.1915C, 716, 83 S. 452; People v. Bank of San Luis E. 540, Ann. Cas. 1916C, 80; 7 C. J. Obispo, 154 Cal. 194, 97 Pac. 306; 727, 1 482; State v. Cadwell, 79 Iowa, People v. Mercantile Co-op. Bank, 53 432, 44 N. W. 700; Park v. First Nat. App. Div. 295, 65 N. Y. Supp. 766; Bank, 23 Ga. App. 167, 97 S. E. 888; People v. Superior Ct. 100 Cal. 105, 34 Clarke v. Ingram, 107 Ga. 565, 33 S. Pac. 492; State use of Mills v. Ameri- E. 802; Owens v. American Nat. Bank, can Surety Co. 26 Idaho, 652, 145 Pac. 36 Tex. Civ. App. 490, 81 S. W. 988; 1097, Ann. Cas. 1916E, 209; State use 22 Cyc. p. 1261 and note 22; 5 Cyc. p. of Allen v. Title Guaranty & S. Co. 27 559; Re Koetting, 90 Wis. 166, 62 N. Idaho, 752, 152 Pac. 189; Lake County W. 622; Wasson v. Hawkins, 59 Fed.

V.

as

(- Ariz.

233 Pac. 887.) 233; Ex parte Berger, 81 S. C. 244, 22 Messrs. Chalmers, Stahl, FenneL.R.A.(N.S.) 445, 62 S. E. 249; Dun- more, & Longan and Luther P. Spa'ddlap v. Seattle Nat. Bank, 93 Wash. ing, for appellees: 568, 161 Pac. 364; Ellis v. Wisconsin, This being a suit upon the official 20 L.R.A. (N.S.) 444 and note, 138 bond of the defendant Fairfield, arisWis. 513, 119 N. W. 1110; State v. ing out of his alleged wrongful act Syverson, 39 S. D. 638, 166 N. W. 157; in permitting the Exchange Bank to State v. Cramer, 20 Idaho, 639, 119 reopen and continue business, it is Pac. 30; Wilkin v. State, 121 Ark. 219, clearly apparent that each of the 180 S. W. 512; Ferry v. Bank of Cen- other depositors was a joint obligee tral New York, 15 How. Pr. 445; under the bond, and was a necessary Steele Commissioner of Banks party to the action. (Steele v. Allen) 240 Mass. 394, 134 4 R. C. L. 65; International Hotel N. E. 401; State v. Welty, 65 Wash. Co. v. Flynn, 238 Ill. 636, 87 N. E. 244, 118 Pac. 9; Grant Bros. Constr. 855, 15 Ann. Cas. 1059; Pom. Code Co. v. United States, 13 Ariz. 388, 114 Rem. 4th ed. p. 163; Montana Min. Pac. 955.

Co. v. St. Louis Min. & Mill. Co. 19 The opinion of the trial court de- Mont. 313, 48 Pac. 305; King v. Kehoe, livered in announcing judgment may 91 Iowa, 91, 58 N. W. 1071; Farni v. be considered in determining the cor- Tesson, 1 Black, 309, 17 L. ed. 67; rectness of the conclusions on which McLeod v. Scott, 38 Ark. 72; Davis the judgment is based.

v. Wannamaker, 2 Colo. 637; Godding Miller v. Marks, 46 Utah, 257, 148 v. Decker, 3 Colo. App. 198, 32 Pac. Pac. 412; Rogers v. Harris, 76 Okla. 832; Reynolds v. Grier, 7 Houst. (Del.) 215, 184 Pac. 459; Chicago, R. I. & 329, 32 Atl. 172; Hadley v. Hobbs, 12 P. R. Co. v. Warren, 63 Okla. 190, 163 Ind. App. 351, 39 N. E. 523; Robbins Pac. 705; Hennessey Oil & Gas Co. v. Ayers, 10 Mo. 538, 47 Am. Dec. 25. v. Neely, 62 Okla. 101, 162 Pac. 214; Plaintiffs had no right to rely, and Rison v. Harris, 50 Okla. 767, 151 Pac. in fact could not have relied, on the 584; Baker v. Polydisky, 144 Minn. alleged representation to the 72, 174 N. W. 526; Grant County State bank's then solvency, in view of the Bank V. Northwestern Land Co. 28

accompanying representation that in N. D. 479, 150 N. W. 736; Britt's Will, its then condition the bank could not 174 Wis. 145, 182 N. W. 738; 11 Enc. pay in excess of 10 per cent of its Pl. & Pr. p. 864, f 6; Clarke v. obligations. Massachusetts Title Ins. Co. 214 Mass. Branan v. Warfield, 3 Ga. App. 586, 31, 100 N, E. 1089; Willamette Box & 60 S. E. 325; Griffin v. Griffin, 130 Ga. Lumber Co. v. Wheeler, 102 Or. 459, 527, 16 L.R.A.(N.S.) 937, 61 S. E. 16, 202 Pac. 714; Bradley Bros. v. Brad- 14 Ann. Cas. 866; Reynolds v. Evans, ley, 20 Cal. App. 1, 127 Pac. 1044; 123 Md. 365, 91 Atl. 564; MarshallLyon & M. Co. v. Modern Order of McCartney Co. v. Halloran, 15 N. D. Praetorians, Tex. Civ. App. —, 142 71, 106 N. W. 293. S. W. 29; Ridgeway v. Ft. Worth, Statements, expressions, and even Tex. Civ. App. -, 243 S. W. 740. .

formal written opinions of the trial The request for findings of fact judge do not constitute findings in the and conclusions of law is timely when case. made after the court has rendered Rice v. Muskegon, 150 Mich. 679, judgment, and the party making such 114 N. W. 661; Kent v. Binghamton, request has a statutory and vested 90 App. Div. 553, 86 N. Y. Supp. 411; right to have the findings and con- Victor Gold & S. Min. Co. v. National clusions made and filed, and failure

Bank, 18 Utah, 87, 72 Am. St. Rep. of the judge to comply with such re

767, 55 Pac. 72; McClory v. McClory, quest is reversible error.

38 Cal. 576; Hidden v. Jordan, 28 Cal. Wandry v. Williams, 103 Tex._91,

302; United States v. Sioux City Stock 124 S. W. 85; Eaton v. Klein, Тех. Civ. App. 141 S. W. 828; Houston

Yards Co. 92 C. C. A. 578, 167 Fed. Oil Co. v. Ragley-McWilliams Lum

126; Saltonstall v. Birtwell, 150 U. S. ber Co. Tex. Civ. App. —, 162 S. W.

417, 37 L. ed. 1128, 14 Sup. Ct. Rep. 1183; Gulf, C. & S. F. R. Co. v. Brack- 169; Stone v. United States, 164 U. S. en, Tex. Civ. App. 180 S. W. 380, 41 L. ed. 477, 17 Sup. Ct. Rep. 285; Marvin v. Kennison Bros. Tex. 71; Lehnen v. Dickson, 148 U. S. 71, Civ. App. -, 230 S. W. 831; Pappot 37 L. ed. 373, 13 Sup. Ct. Rep. 481; v. Howard, 154 Ala. 306, 45 So. 581. Fisk v. Casey, 119 Cal. 643, 51 Pac.

.

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1077; Upton v. Weisling, 8 Ariz. 298, in an unsafe condition; that, when 71 Pac. 917, 22 Mor. Min. Rep. 601. it appeared to the comptroller that

Written findings of fact were not said bank was unsafe and insolvent, essential to support the judgment in his duties required him to take exthis case, for the reason that plain- clusive control of the business of tiffs' request for written findings was

said bank, its property, and effects, not timely, and therefore the general finding necessarily involved in the

in order to prevent waste or diverjudgment for defendants was suffi

sion of assets, and to suspend the cient.

business of the same until otherwise 38 Cyc. p. 1976; Daggs v. Hoskins, ordered by the court; but that said 5 Ariz. 300, 52 Pac. 357; McGowan v. comptroller, in reckless disregard Sullivan, 5 Ariz. 334, 52 Pac. 986; Main and violation of such duties, and in v. Main, 7 Ariz. 149, 60 Pac. 888; New- bad faith, wrongfully, wilfully, and hall v. Porter, 7 Ariz. 160, 62 Pac. maliciously failed, neglected, and re689.

fused to take possession and control Unless the request for findings is made before judgment, no complaint things so required of him. It is also

of said bank, and to do the other can be based on lack of findings. Hartlep v. Cole, 120 Ind. 247, 22

charged in complaint that the compN. E. 130; Miller v. Lively, 1 Ind. App.

troller wilfully, wrongfully, and 6, 27 N. E. 437; Stumph v. Miller, 142

maliciously failed and neglected to Ind. 442, 41 N. E. 812; Parham v. examine into the condition of the Gibbs, 16 Lea, 296; Stephens v. Mason, Exchange Bank at any time between 99 Tenn. 512, 42 S. W. 143; German December 31, 1920, and the 27th day State Bank v. Ptachek, 67 Okla. 176, of February, 1922; that on said 169 Pac. 1094; First Nat. Bank V. last-named date the comptroller did Citizens' State Bank, 11 Wyo. 32, 100

take possession of the bank on acAm. St. Rep. 925, 70 Pac. 726; Ross

count of its being insolvent and unv. Barker, 58 Neb. 402, 78 N. W. 730; Austin v. Diffendaffer, 96 Neb. 747,

safe, and notified the governor and 148 N. W. 907; Allen v. Dodson, 39

attorney general in writing; and Kan. 220, 17 Pac. 667; Smythe v.

that on March 14, 1922, the attorney Parsons, 37 Kan. 79, 14 Pac. 444; general began legal proceedings to Schwartz v. Stock, 26 Nev. 128, 65 liquidate said insolvent bank and its Pac. 351; Thompson Bros. Feed Co. v. business; that the assets of said Neiman Bros. Co. 203 Ill. App. 317. bank cannot pay to exceed 1 per cent Ross, J., delivered the opinion of

to its depositors. the court:

To this complaint the defendants The plaintiffs as depositors, and

filed an answer, setting up, first, a as assignees of thirty-eight other de- plea in abatement, the grounds positors, of the Exchange Bank of

therefor being that besides the Peoria, a domestic banking corpo

plaintiffs and their assignors there ration, brought this action against

were 136 other depositors of the ExCharles W. Fairfield, as bank comp

change Bank who were jointly and troller, and Maryland

Maryland Casualty undividedly interested in any reCompany, a corporation, as surety,

covery upon fidelity bond sued on alleging that the sums sued for

herein, and that they were proper ($16,429.88) were deposited from

and necessary parties to the action. time to time after March 22, 1921, They demurred generally to the and before February 22, 1922, by complaint, and specifically that the plaintiffs and their assignors; that plaintiffs were not entitled to sue during said times the bank was in

upon the assigned claims, for the solvent and unsafe, and known to reason that they, as assignors, were be so by defendant comptroller, or

not injured or aggrieved by the alby the exercise of reasonable care leged breach of the conditions of the and diligence on his part could have bond. In other words, that the been known by him; that plaintiffs claims of the assignors were nonand their assignors did not know of assignable. The defendants, furthe bank's insolvency, or that it was ther answering the complaint, by (- Ariz. 233 Pac. 887.) way of plea in bar, state that prior lieu of the money now due such deto March 22, 1921, the plaintiffs positors from said bank, and said were depositors in the Exchange Exchange Bank of Peoria agrees to Bank, and both prior and subse- redeem said certificates at their face quent to that date had moneys on value at their maturity. deposit in said bank as general de

"Dated March 28, 1921. positors; that on said date the Ex- "This agreement not to be binding change Bank suspended its business on any of the undersigned unless on account of large and unusual depositors representing at least withdrawals depleting its ready and eighty per cent (80%) of all deposavailable cash, and notified defend- its of the Exchange Bank of Peoria ant comptroller of their action in sign this agreement.” suspending business, and requested him to take possession of the bank

It is alleged that the comptroller and its property and assets; that on

relied upon the representations, or about the 28th day of March, the

covenants, and agreements conplaintiffs and divers other depos- mitted said bank to reopen on the

tained in the above writing, and peritors of the bank, constituting more

20th day of April, 1921, and to conthan 80 per cent of all the deposits of said bank, represented to the

tinue to operate and do business; comptroller that they had confidence

that by reason of the premises the

plaintiffs were estopped to complain in the officers and directors of the bank, and were desirous of having

of the alleged injuries mentioned in the bank reopen and continue its

their complaint. The answer also banking business, and presented

contains general and specific de

nials. said comptroller with the following agreement:

The plaintiffs filed a reply to the

plea in bar which was, in substance, "State of Arizona,

that the defendant comptroller had County of Maricopa 58:

handed them the writing for the sig"Whereas, by reason of unfavor- nature of themselves and other deable financial conditions the Ex. positors, asking that the bank be rechange Bank of Peoria has suspend- opened, 'and had induced them and ed business; and

other depositors to sign said re"Whereas, said bank will reopen quest, stating that the bank was for, and continue in business, if the solvent and safe, save only its cash undersigned depositors will leave reserve was below what was retheir present deposits with the said quired by law, and if the bank were bank for a period of one year from reopened they would realize their this date, and will carry out this deposits, but if it were not reopened agreement:

they would not realize in excess of “Now, therefore, the undersigned

10 per cent of their deposits; and depositors of said bank having con- that it was upon such representafidence with (in) its officers and di

tions that they signed such instrurectors, and being desirous of hav

ment. ing said bank reopen and continue

The defendants' plea in abateits banking business, each for a valuable consideration and in consid

ment was held to be bad, and their eration of the signature of others

special demurrers were overruled. hereto, does hereby agree to accept

The case was tried before the

Honorable R. C. Stanford, sitting from said bank, and said bank agrees to issue to the undersigned without a jury, who, on December depositors, five certificates of de- 23, 1922, rendered judgment for deposit, payable respectively in 12, 13,

fendants. Immediately after the 14, 15, and 16 months from April rendition of judgment, the plaintiffs 1, 1921, for one fifth of the amount requested that the court make writof money now to the credit of each ten findings of fact and conclusions of said depositors in said bank, in of law. Later, on December 29, both parties submitted to the court drafts is rendered. The paragraph of the of findings, and were heard thereon statute bearing on these questions is by the court in chambers.

The as follows: "In every case tried bejudge, at his home, on the night of fore a judge of the superior court December 30, being the last judicial without a jury the decision of the day of his term of office, made find- court shall be given within sixty ings of fact and conclusions, and de- days from the submission of the posited them with the clerk of the

case, The court may in any case, court on January 2, 1923, and the and shall, at the request of either clerk filed them as of December 30, party, make written findings of fact, 1922. Plaintiffs thereafter made stating the facts found by the court their motion to correct the record to and the conclusions of law separatemake it show the actual time of fil- ly.” Civ. Code 1913, 1 528. ing findings, and then to strike The statute imposes the duty of them, on the ground that they were making these

making these findings upon the not made by Judge Stanford during court, and not upon

Trial-findings his term of office, and were not made the judge of the at chambers,

sufficiency. in open court. These motions came court. In this reon to be heard before the Honorable spect it differs from the statutes Fred C. Struckmeyer, judge of the generally, and especially from that superior court of Maricopa county, of Texas, after which it is supposed and were by him granted. Plain- to have been fashioned. Vernon's tiffs' motion for a new trial was Sayles's Civ. Stat. (Tex.) 1914, art. likewise heard by Judge Struck- 1989. There is a difference between meyer and denied, the court taking the court and the judge of the court. the view that the general findings of It takes more than the presiding ofhis predecessor in favor of defend- ficer to constitute the court. As is ants were sufficient to sustain the said in Chow Loy v. United States, judgment. The plaintiffs now con- 50 C. C. A. 279, 112 Fed. 354: “A tend they were entitled to have spe- court is not a judge, nor a judge a cial findings of fact and conclusions court.” When we speak of a court of law made by the court that tried we think of the presiding judge, a the case, and the defendants, by clerk, parties, and attorneys, and cross assignment take the position while all of these are not necessary that the findings stricken on plain to constitute the court, neither is the tiffs' motion were found by such judge alone the court. Hartshorn court, and therefore should not have v. Illinois Valley R. Co, 216 Ill. 392, been stricken. Much of the briefs 75 N. E. 122. In Andrade v. And and of the record is devoted to these rade, 14 Ariz. 384, 128 Pac. 815, and other questions of practice and

we said:

“Only the court can make procedure.

findings" of fact. It is only by conThe plaintiffs appeal from the struing the word "court” to mean judgment of December 23, 1922, and “judge that there would be any from an order of the court made plausibility in sustaining the action February 26, 1923, denying their of Judge Stanford in making his motion to supplement the clerk's findings at his home, instead of in minute entry of the decision and open court; and when the distinction judgment as orally announced, with between the two words is so procertain oral statements of fact made nounced and well understood, we do by the court at the time.

not feel at liberty to adopt that conWe are satisfied the court's action struction. In striking the findings was correct, As before stated, the request for and while the law entitles a party to special findings and conclusions of findings and conclusions when the law was not made by plaintiffs until request therefor is timely made, it after the judgment was rendered. is not error to refuse to make them Our statute, 528, supra, is silent as if the request comes after judgment to when this request should be made.

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