Article Text
Court's Opinion Upholds Powell and Cooper as Receivers
Law Not Mandatory in Requiring Judge to Appoint Bank Examiner Is Ruling in First Savings Bank Case
SANTA FE, Jan. 23 (4P)-In lengthy opinion the state supreme court Tuesday upheld jurisdiction of Judge Milton J. Helmick of Albuquerque in receivership suit involving the First Savings Bank and Trust CO., of that city. In effect, the court held that the state, having admitted jurisdiction of Judge Helmick in an original appointment, did not have any legal grounds in subsequent action seeking to upset the first appointment, which was of two co-receivers, and also that the law was not mandatory requiring court to appoint the state bank examiner The action was titled "Original preceeding in prohibition" and was Lester Cooper and William H. Powell, as receivers of the First Savings Bank and Trust Company of Albuquerque, and E. E. EnderIin, relators, and M. A. Otero, district judge of the first district, pretending to sit as judge of the second judicial district, as respondent Upholds Court's Power The opinion sets out the history of the case with the appointment of the co-receivers in cause 20779 and coming to the later action seeking to have John Bingham, state bank examiner, named rein case 21029. Judge Helmick appointed the COreceivers. At the time the state became party to suit, admitting jurisdiction. Thereafter an action was started to have Bing. ham named under the provisions of chapter 32, laws of contending the exclusive right of the examiner to be receiver Counsel for the respondent said the lan guage of the act meant that suit for receiver of an insolvent bank should brought by any person other than the attorney general: second, that no court should appoint receiver except upon application of the attorney general and third that the state bank is the sole and only person and officer may be ap pointed by the court as the receiver. Courts of equity have inherent power to appoint of corporations, the said "The contention of counsel for respondent apparently is that said act of 1933 has supplied such inference. Court's Power Not Restricted The opinion said in discussing the 1929 compilation section 65 chapter 67 of the 1915 laws, which said banks should be subject to all liabilities and restrictions provided for corporations in general. "That such interference extends not only to the power of the dis trict court to appoint receiver for bank under the law govern ing corporations in general but further has served to abrogate the inherent power of courts such We are not persuaded of the correctness of respondent's third contention that the court must appoint the state bank aminer and as to the first and second contentions we express no opinion After discussion of the prob. lems of banking as peculiarly dif ficult, the court says 'In several including New Mexi the visitorial power conferred upon the state banking officer to possession of state bank is only preliminary to court action in order to give the state officer more than temporary standing in other states our wn the statute allowing the state ank examiner the right to act loes not provide whether this ight is exclusive or not An of the on this question from the class of states nentioned displays contrariety Many of them are value because of the dissimiarity of the statutes Bank Examiner Surrendered in the cause first invoked by complaint the pow of the district court for deermination of the charge that the rst Savings Bank and Trust ompany of Albuquerque was inIvent and was jeopardising the terests of its There prayer for the appointment of ceiver x The bank did not opear but made default. The miner who at the time in ossession of the bank and its sets, answered, admitting in the ain the allegations of the comaint, being represented by his unsel the assistant attorney genThere follows a historical of the says after the receivers quallSept. surrendered the sets of the bank to the receivers us appointed About three weeks later, "The aminer by his ed a motion in said cause which set forth his official standing This motion was after iich 21029 was filed, which re sought to be prohibited. "Is chapter 32. laws of 1933 andatory statute. requiring the dicial department the governent to appoint the state bank aminer receiver of an Insolvent nk. when there is occasion to point such receiver in literal mpliance with the provisions of the court Does said act provide that jeiver shall be appointed by the art except upon application de therefor by the attorney genanother question the irt asked In its opinion Raises Question 'If so, it would appear there is force to the contention of respondent says Suppose examiner should be E office after the opinion asks Does he continue the receiver? If his successor is not appointed and qualified immediately would there be no receiver? These questions must answer themselves in the negative, the opinion says. 'Whether under the state banking act a receiver may be appointed by the court upon application of any person other than the torney general at the instance of the bank examiner is question we need not now decide, the opinion said. "In the view we take the respondent is precluded from pressing such contention. In each action, the court said, the appropriateness and necessity of proven. The opinion says the 1933 law does not differ 80 "far as any legislative direction as to the name of the party in whom the suit for a receiver shall be and maintained by the attorney general," does not differ from the statutes of 1909, 1915, 1917, 1919 and 1921 number of decisions are cited and then the matter of overruling motion by Judge Helmick is taken think the opinion said, "It would be reproach upon the of justice to regard mere form and technicality rather than and say under the disclosed by the record, that the proceedings in the first case are without sustaining jurisdiction and therefore void. Failed to Oppose "After upon the bank examiner of the rule to show cause why the prayer of the creditors' petition should not be granted and receiver appointed, the examiner and his attorney the attorney general might have contested the DOWof the court to deal with the matter and have challenged its authority in this regard but they elected to submit the cause to the courtr in that proceeding and they now its adjudication by challenging its power in collateral proceeding Whatever authority the may have lacked In the instance was conferred by filing the answer the rule to show ,admitting the facts alleged cause of action warranting the appointment of a receiver. and which the judgement of the court asked by them, and by accepting and ratifying the court's action, and seeking further relief in the same cause, by seeking modification of earlier orders. "We hold that the respondent. acting judge of the second judiclal district court in place and stead of the resident district judge of said district, acted in excess of his jurisdiction in entertaining the complaint of the State of New Mexico or the attorney general in cause
Writ Made Absolute "The judge and court proceeded entirely upon the theory that everything which had theretofore been done by the court in the previous case null and void If had been some of the orders of the respondent might be sustained If made in an appropriate Under the circumstances, seem that case No 21029 must fall in its entirety. "For the reasons the writ will be made absolute and is ordered. The opinion is by Justice ley and Justices Sadler and Huds. peth concur Chief Justice Watson did not In concurring opinion, Justice Zinn said concur on the result on the sole theory that the acts of the bank examiner and attorney general in making return to the order show wherein they admitted the insolvency of the and subsequently by their petition in and they presented the very questios sought to be litigated in cause 21029 They supplied the property party plaintiff to give life to the case Parties litigant cannot play fast and loose, blow hot and cold, the courts. Litigants cannot be permitted to assume position in court, and on the anticipation an adverse withdraw from the case. Having elected to adopt certain course action, they will be confined to that course which they adopt.' Judge Otero first refused to alt in the case after he had been asked by parties to the sult. after Judge Helmick was disqualified on motion attorney general. Later, the supreme court ordered Judge Otero in the case. The disqualification law provides the shall name judge none will
