233; Ex parte Berger, 81 S. C. 244, 22 L.R.A. (N.S.) 445, 62 S. E. 249; Dunlap v. Seattle Nat. Bank, 93 Wash. 568, 161 Pac. 364; Ellis v. Wisconsin, 20 L.R.A. (N.S.) 444 and note, 138 Wis. 513, 119 N. W. 1110; State v. Syverson, 39 S. D. 638, 166 N. W. 157; State v. Cramer, 20 Idaho, 639, 119 Pac. 30; Wilkin v. State, 121 Ark. 219, 180 S. W. 512; Ferry v. Bank of Central New York, 15 How. Pr. 445; Steele v. Commissioner of Banks (Steele v. Allen) 240 Mass. 394, 134 N. E. 401; State v. Welty, 65 Wash. 244, 118 Pac. 9; Grant Bros. Constr. Co. v. United States, 13 Ariz. 388, 114 Pac. 955.

The opinion of the trial court delivered in announcing judgment may be considered in determining the correctness of the conclusions on which the judgment is based.

Miller v. Marks, 46 Utah, 257, 148 Pac. 412; Rogers v. Harris, 76 Okla. 215, 184 Pac. 459; Chicago, R. I. & P. R. Co. v. Warren, 63 Okla. 190, 163 Pac. 705; Hennessey Oil & Gas Co. v. Neely, 62 Okla. 101, 162 Pac. 214; Rison v. Harris, 50 Okla. 767, 151 Pac. 584; Baker v. Polydisky, 144 Minn. 72, 174 N. W. 526; Grant County State Bank v. Northwestern Land Co. 28 N. D. 479, 150 N. W. 736; Britt's Will, 174 Wis. 145, 182 N. W. 738; 11 Enc. Pl. & Pr. p. 864, ¶ 6; Clarke v. Massachusetts Title Ins. Co. 214 Mass. 31, 100 N. E. 1089; Willamette Box & Lumber Co. v. Wheeler, 102 Or. 459, 202 Pac. 714; Bradley Bros. v. Bradley, 20 Cal. App. 1, 127 Pac. 1044; Lyon & M. Co. v. Modern Order of Praetorians, Tex. Civ. App. 142 S. W. 29; Ridgeway v. Ft. Worth, Tex. Civ. App. 243 S. W. 740.

Messrs. Chalmers, Stahl, Fennemore, & Longan and Luther P. Spa'ding, for appellees:

This being a suit upon the official bond of the defendant Fairfield, arising out of his alleged wrongful act in permitting the Exchange Bank to reopen and continue business, it is clearly apparent that each of the other depositors was a joint obligee under the bond, and was a necessary party to the action.

4 R. C. L. 65; International Hotel Co. v. Flynn, 238 Ill. 636, 87 N. E. 855, 15 Ann. Cas. 1059; Pom. Code Rem. 4th ed. p. 163; Montana Min. Co. v. St. Louis Min. & Mill. Co. 19 Mont. 313, 48 Pac. 305; King v. Kehoe, 91 Iowa, 91, 58 N. W. 1071; Farni v. Tesson, 1 Black, 309, 17 L. ed. 67; McLeod v. Scott, 38 Ark. 72; Davis v. Wannamaker, 2 Colo. 637; Godding v. Decker, 3 Colo. App. 198, 32 Pac. 832; Reynolds v. Grier, 7 Houst. (Del.) 329, 32 Atl. 172; Hadley v. Hobbs, 12 Ind. App. 351, 39 N. E. 523; Robbins v. Ayers, 10 Mo. 538, 47 Am. Dec. 125.

Plaintiffs had no right to rely, and in fact could not have relied, on the alleged representation as to the bank's then solvency, in view of the accompanying representation that in its then condition the bank could not pay in excess of 10 per cent of its obligations.

Branan v. Warfield, 3 Ga. App. 586, 60 S. E. 325; Griffin v. Griffin, 130 Ga. 527, 16 L.R.A. (N.S.) 937, 61 S. E. 16, 14 Ann. Cas. 866; Reynolds v. Evans, 123 Md. 365, 91 Atl. 564; MarshallMcCartney Co. v. Halloran, 15 N. D. 71, 106 N. W. 293.

Statements, expressions, and even formal written opinions of the trial judge do not constitute findings in the

case.

Rice v. Muskegon, 150 Mich. 679, 114 N. W. 661; Kent v. Binghamton, 90 App. Div. 553, 86 N. Y. Supp. 411; Victor Gold & S. Min. Co. v. National Bank, 18 Utah, 87, 72 Am. St. Rep. 767, 55 Pac. 72; McClory v. McClory, 38 Cal. 576; Hidden v. Jordan, 28 Cal. 302; United States v. Sioux City Stock Yards Co. 92 C. C. A. 578, 167 Fed. 126; Saltonstall v. Birtwell, 150 U. S. 417, 37 L. ed. 1128, 14 Sup. Ct. Rep. 169; Stone v. United States, 164 U. S. 380, 41 L. ed. 477, 17 Sup. Ct. Rep. 71; Lehnen v. Dickson, 148 U. S. 71, 37 L. ed. 373, 13 Sup. Ct. Rep. 481; Fisk v. Casey, 119 Cal. 643, 51 Pac.

1077; Upton v. Weisling, 8 Ariz. 298, 71 Pac. 917, 22 Mor. Min. Rep. 601.

Written findings of fact were not essential to support the judgment in this case, for the reason that plaintiffs' request for written findings was not timely, and therefore the general finding necessarily involved in the judgment for defendants was sufficient.

38 Cyc. p. 1976; Daggs v. Hoskins, 5 Ariz. 300, 52 Pac. 357; McGowan v. Sullivan, 5 Ariz. 334, 52 Pac. 986; Main v. Main, 7 Ariz. 149, 60 Pac. 888; Newhall v. Porter, 7 Ariz. 160, 62 Pac. 689.

Unless the request for findings is made before judgment, no complaint can be based on lack of findings.

Hartlep v. Cole, 120 Ind. 247, 22 N. E. 130; Miller v. Lively, 1 Ind. App. 6, 27 N. E. 437; Stumph v. Miller, 142 Ind. 442, 41 N. E. 812; Parham v. Gibbs, 16 Lea, 296; Stephens v. Mason, 99 Tenn. 512, 42 S. W. 143; German State Bank v. Ptachek, 67 Okla. 176, 169 Pac. 1094; First Nat. Bank v. Citizens' State Bank, 11 Wyo. 32, 100 Am. St. Rep. 925, 70 Pac. 726; Ross v. Barker, 58 Neb. 402, 78 N. W. 730; Austin v. Diffendaffer, 96 Neb. 747, 148 N. W. 907; Allen v. Dodson, 39 Kan. 220, 17 Pac. 667; Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444; Schwartz v. Stock, 26 Nev. 128, 65 Pac. 351; Thompson Bros. Feed Co. v. Neiman Bros. Co. 203 Ill. App. 317.

Ross, J., delivered the opinion of the court:

The plaintiffs as depositors, and as assignees of thirty-eight other depositors, of the Exchange Bank of Peoria, a domestic banking corporation, brought this action against Charles W. Fairfield, as bank comptroller, and Maryland Casualty Casualty Company, a corporation, as surety, alleging that the sums sued for ($16,429.88) were deposited from time to time after March 22, 1921, and before February 22, 1922, by plaintiffs and their assignors; that during said times the bank was insolvent and unsafe, and known to be so by defendant comptroller, or by the exercise of reasonable care and diligence on his part could have been known by him; that plaintiffs and their assignors did not know of the bank's insolvency, or that it was

in an unsafe condition; that, when it appeared to the comptroller that said bank was unsafe and insolvent, his duties required him to take exclusive control of the business of said bank, its property, and effects, in order to prevent waste or diversion of assets, and to suspend the business of the same until otherwise ordered by the court; but that said comptroller, in reckless disregard and violation of such duties, and in bad faith, wrongfully, wilfully, and maliciously failed, neglected, and refused to take possession and control of said bank, and to do the other things so required of him. It is also charged in complaint that the comptroller wilfully, wrongfully, and maliciously failed and neglected to examine into the condition of the Exchange Bank at any time between December 31, 1920, and the 27th day of February, 1922; that on said last-named date the comptroller did take possession of the bank on account of its being insolvent and unsafe, and notified the governor and attorney general in writing; and that on March 14, 1922, the attorney general began legal proceedings to liquidate said insolvent bank and its business; that the assets of said bank cannot pay to exceed 1 per cent to its depositors.

To this complaint the defendants filed an answer, setting up, first, a plea in abatement, the grounds therefor being that besides the plaintiffs and their assignors there were 136 other depositors of the Exchange Bank who were jointly and undividedly interested in any recovery upon fidelity bond sued on herein, and that they were proper and necessary parties to the action. They demurred generally to the complaint, and specifically that the plaintiffs were not entitled to sue upon the assigned claims, for the reason that they, as assignors, were not injured or aggrieved by the alleged breach of the conditions of the bond. In other words, that the claims of the assignors were nonassignable. The defendants, further answering the complaint, by

way of plea in bar, state that prior to March 22, 1921, the plaintiffs were depositors in the Exchange Bank, and both prior and subsequent to that date had moneys on deposit in said bank as general depositors; that on said date the Exchange Bank suspended its business on account of large and unusual withdrawals depleting its ready and available cash, and notified defendant comptroller of their action in suspending business, and requested him to take possession of the bank and its property and assets; that on or about the 28th day of March, the plaintiffs and divers other depositors of the bank, constituting more than 80 per cent of all the deposits of said bank, represented to the comptroller that they had confidence in the officers and directors of the bank, and were desirous of having the bank reopen and continue its banking business, and presented said comptroller with the following agreement:

"State of Arizona,) County of Maricopa

"Whereas, by reason of unfavorable financial conditions the Exchange Bank of Peoria has suspended business; and

"Whereas, said bank will reopen for, and continue in business, if the undersigned depositors will leave their present deposits with the said bank for a period of one year from this date, and will carry out this agreement:

"Now, therefore, the undersigned depositors of said bank having confidence with (in) its officers and directors, and being desirous of having said bank reopen and continue its banking business, each for a valuable consideration and in consideration of the signature of others hereto, does hereby agree to accept from said bank, and said bank agrees to issue to the undersigned depositors, five certificates of deposit, payable respectively in 12, 13, 14, 15, and 16 months from April 1, 1921, for one fifth of the amount of money now to the credit of each of said depositors in said bank, in

lieu of the money now due such depositors from said bank, and said Exchange Bank of Peoria agrees to redeem said certificates at their face value at their maturity.

"Dated March 28, 1921.

"This agreement not to be binding on any of the undersigned unless depositors representing at least eighty per cent (80%) of all deposits of the Exchange Bank of Peoria sign this agreement.”

It is alleged that the comptroller relied upon the representations, covenants, and agreements contained in the above writing, and permitted said bank to reopen on the tinue to operate and do business; 20th day of April, 1921, and to conthat by reason of the premises the plaintiffs were estopped to complain of the alleged injuries mentioned in their complaint. The answer also contains general and specific denials.

The plaintiffs filed a reply to the plea in bar which was, in substance, that the defendant comptroller had handed them the writing for the signature of themselves and other depositors, asking that the bank be reopened, and had induced them and other depositors to sign said request, stating that the bank was solvent and safe, save only its cash reserve was below what was required by law, and if the bank were reopened they would realize their deposits, but if it were not reopened they would not realize in excess of 10 per cent of their deposits; and that it was upon such representations that they signed such instrument.

The defendants' plea in abatement was held to be bad, and their special demurrers were overruled.

The case was tried before the Honorable R. C. Stanford, sitting without a jury, who, on December 23, 1922, rendered judgment for defendants. Immediately after the rendition of judgment, the plaintiffs requested that the court make written findings of fact and conclusions of law. Later, on December 29, both

parties submitted to the court drafts of findings, and were heard thereon by the court in chambers. The judge, at his home, on the night of December 30, being the last judicial day of his term of office, made findings of fact and conclusions, and deposited them with the clerk of the court on January 2, 1923, and the clerk filed them as of December 30, 1922. Plaintiffs thereafter made their motion to correct the record to make it show the actual time of filing findings, and then to strike. them, on the ground that they were not made by Judge Stanford during his term of office, and were not made in open court. These motions came on to be heard before the Honorable Fred C. Struckmeyer, judge of the superior court of Maricopa county, and were by him granted.

Plain

tiffs' motion for a new trial was likewise heard by Judge Struckmeyer and denied, the court taking the view that the general findings of his predecessor in favor of defendants were sufficient to sustain the judgment. The plaintiffs now contend they were entitled to have special findings of fact and conclusions of law made by the court that tried the case, and the defendants, by cross assignment take the position that the findings stricken on plaintiffs' motion were found by such court, and therefore should not have been stricken. Much of the briefs and of the record is devoted to these and other questions of practice and procedure.

The plaintiffs appeal from the judgment of December 23, 1922, and from an order of the court made February 26, 1923, denying their motion to supplement the clerk's minute entry of the decision and judgment as orally announced, with certain oral statements of fact made by the court at the time.

We are satisfied the court's action In striking the findings was correct, and while the law entitles a party to findings and conclusions when the request therefor is timely made, it is not error to refuse to make them if the request comes after judgment

and shall, at the request of either party, make written findings of fact, stating the facts found by the court and the conclusions of law separately." Civ. Code 1913, ¶ 528.

sufficiency.

The statute imposes the duty of making these findings upon the court, and not upon Trial-findings the judge of the at chamberscourt. In this respect it differs from the statutes generally, and especially from that of Texas, after which it is supposed to have been fashioned. Vernon's Sayles's Civ. Stat. (Tex.) 1914, art. 1989. There is a difference between the court and the judge of the court. It takes more than the presiding officer to constitute the court. As is said in Chow Loy v. United States, 50 C. C. A. 279, 112 Fed. 354: “A court is not a judge, nor a judge a court." When we speak of a court we think of the presiding judge, a clerk, parties, and attorneys, and while all of these are not necessary to constitute the court, neither is the judge alone the court. Hartshorn v. Illinois Valley R. Co. 216 Ill. 392, 75 N. E. 122. In Andrade v. Andrade, 14 Ariz. 384, 128 Pac. 815, we said: "Only the court can make findings" of fact. It is only by construing the word "court" to mean "judge" that there would be any plausibility in sustaining the action of Judge Stanford in making his findings at his home, instead of in open court; and when the distinction between the two words is so pronounced and well understood, we do not feel at liberty to adopt that construction.

As before stated, the request for special findings and conclusions of law was not made by plaintiffs until after the judgment was rendered. Our statute, T 528, supra, is silent as to when this request should be made.