Mershon-Welsh Co. v. International State Bank ex rel. Smith , 51 S.D. 308 ( 1927 )

MORIARTY, C.

This action was brought by the plaintiff corporation to recover the sum of $2,312.96 and interest, which it alleges is due to it upon a written contract. The contract was made by an assignor of the plaintiff with the International State Bank of Sioux- Falls. The bank went into the hands of the banking department shortly after the execution of the contract, and the plaintiff seeks to recover the amount of its claim from the assets of the bank.

The answer of the defendants denies that there is any liability on the contract, and also sets up the further defense that the plaintiff’s right of action is barred by the fact that the action was not begun within three months after it received notice of the rejection of its ¡claim by the superintendent of banks.

The case was tried to the court without a jury. The court made findings and conclusions to the effect that the suit was begun before the right of action was barred, and thát the sum of $2119.96 was due to the plaintiff upon the contract. From a judgment in accordance with these findings and conclusions and from an order denying a new trial, the plaintiff appeals, on the ground that the evidence entitled it to judgment for the full amount of its claim.

The defendants have taken a cross-appeal, contending that the trial -court erred in holding that the action was not barred, and in giving the plaintiff judgment in any amount.

As to this defense of the right of action being barred, the facts are as follows:

The plaintiff duly presented its claim to the superintendent of banks, and the superintendent rejected the claim. On September i-2, 1924, the plaintiff received a letter written on stationery bearing the printed word's, “International State Bank, Sioux Falls, S. D. Suspended January 19, 1924” — which letter was in words and figures as follows:

“M'ershon Advertising Co., 200 Fast Erie St., Chicago, 111.— Gentlemen: This is to advise you that your claim against the International State Bank in the amount of $2,312.96, which was filed on or about June 28, last, has been rejected. Yours very truly, J. E. Witten, Examiner in 'Charge.”

It is admitted that the superintendent of banks rejected the claim, and the record before us is silent as to whether or not the superintendent instructed Witten to give notice of such rejection. It is also admitted that J. E. Witten had been duly appointed as an examiner to tke charge of the International State Bank and had filed a -copy of his -certificate of appointment in the office of the clerk of courts of the county in which the said bank was 'situated.

Section 8929, Revised Code of 1919, provides that the superintendent of banks may appoint one or more examiners in charge to assist him in the duty of liquidation and distribution, and that he may from time to time authorize any examiner to perform such duties connected with such liquidation and distribution as he may deem proper.

Section 8933, R. C., provides for the presentation of claims to the superintendent, and further provides:

“If the superintendent of banks doubts the justice * * * of any claim, he may reject the same an-d serve notice of such rejection upon the claimant, either by mail or personally. * * * An action upon a claim so- rejected must be brought within three months after such service.”

It is admitted that this action was not brought within three months after the above-mentioned letter was received by the plaintiff. But the plaintiff contends that said letter was not in form sufficient to constitute the notice provided for by the statute, in that the notice does not state that the claim had been repected by the superintendent of banks, nor does the signature of the letter purport to be that of the superintendent or any one signing on his 'behalf.

This objection goes to the form of the notice only. It is conceded that the superintendent may -delegate to his assistants the ministerial duty of preparing such notices and of signing and mailing them. 'But it is -contended that there is nothing in this letter to inform the claimant that its -claim had been rejected by the superintendent, or that the letter was sent to give the notice required to be given by the superintendent.

The statute has provided a short statute of limitations in these matters, and the necessity for' such provision is apparent. Without a statute of this kind the liquidation and distribution of the assets of defunct banks would be so impeded as to be impractical. This statute must be construed with a view to effect its object. Section 10656, R. C. .

The law makes examiners in charge assistants of the superintendent of banks. The statute which requires the filing of a copy of the examiner’s certificate of appointment gives the public constructive notice of the authority of the examiner in charge of any particular bank. The law itself gives notice that the examiner is acting as an assistant of the superintendent. When one authorized to act in such capacity signs a statement that a certain claim has been rejected, such statement must be held to mean that it has been rejected according to law. And it must be presumed that the examiner in charge is performing his duty according to law in giving the notice. All public officers are presumed to have performed their duty. Fullerton Lumber Co. v. Tinker, 22 ,S. D. 427, 118 N. W. 700, 18 Ann. Cas. 11; State v. Blegen, 26 S. D. 106, 128 N. W. 488; Ege v. Williams, 38 S. D. 50, 159 N. W. 898; Reed v. Todd, 40 S. D. 27, 166 N. W. 167.

“Where an act is done by a public functionary in the discharge of official duty, which can be done only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act.” Pine Tree Lumber Co. v. City of Fargo, 12 N. D. 360, 96 N. W. 357; McCamey v. Wright, 95, Ark. 477, 132 S. W. 223;’ Slaughter v. Cooper, 56 Tex. Civ. App. 169, 121 S. W. 173; 22 C. J. § 69.

Since there is a legal presumption that J. E. W'itten, acting as examiner in charge, and signing as such, acted regularly and within his authority, the plaintiff was bound to take notice that the letter received by it meant that its claim had been rejected in conformity to law, and that Witten’s acts in signing and mailing the letter were duly authorized. The letter was notice sufficient to set running the three months’ statute of limitations, and the learned trial court erred in holding that plaintiff’s right of action was not barred.

The judgment and order appealed from are reversed and the case is remanded, with directions that the trial court enter judgment for the defendants upon their cross-appeal.

GATE'S, FO'LLEY, and SHERWOOD, JJ, concur.