Toohey v. Hirning , 50 S.D. 19 ( 1926 )

POELEY, J.

Plaintiff in this action is city treasurer of the city of Sioux Falls. As such treasurer he was a depositor, to a large extent, in the International State Bank of Sioux Falls. While plaintiff was still such depositor, and on the 19th day of January, 1924, said hank suspended and was taken in charge by the defendant as superintendent of 'banks. Plaintiff thereupon, filed his claim, for the amount of his deposit with the said superintendent of banks, which said claim was allowed for its full amount. Thereafter a dividend of 20 per cent, was allowed by. said superintendent of banks to the creditors of said bank, but he, the said superintendent, refused to pay to. plaintiff his share of said ■ dividend, and plaintiff instituted this action to compel the payment of the same. Defendant admits the above allegations, but says that plaintiff is holding security for the payment of the amount of his claim, and is therefore not entitled to any part of the dividend No other reason i< given for the refusal of said dividend. The trial court denied the relief sought, and plaintiff appeals.

The case of Hirning, as Superintendent of Banks, v. Toohey, 49 S. D. 496, 207 N. W. 462, recently decided by this court was brought for the'purpose Of compelling the defendant (plaintiff in this action) to return the said securities to the banking department on the theory that he was never properly entitled to the possession thereof. In that acti.on plaintiff prevailed, and the said securities have been returned.

Inasmuch as the 'holding of the said securities is the only ¡reason assigned for the refusal to pay to plaintiff his said dividend now that the securities have been returned it follows necessarily that plaintiff is entitled to his dividend.

The order appealed from is reversed.

MISER, Circuit Judge, sitting in lieu of SHERWOOD, J.