Innes v. State Banking Board , 113 Tex. 300 ( 1923 )

ON MOTION FOR REHEARING. The motion for leave to file the petition for mandamus in this case was overruled on May 9, 1923.

We are asked to consider relator's motion for rehearing filed herein, and to permit the petition to be filed. We have concluded to consider the motion because of the importance of the questions involved, although it has not been the practice of this Court, at least in recent years, to permit the filing of motions for rehearing on orders overruling motions for leave to file petitions for mandamus.

Applying the reasons for the rule announced in Hines v. Morse,92 Tex. 194, 47 S.W. 516, it is apparent that the filing of a motion for rehearing on an order refusing leave to file a petition for mandamus is not a matter of statutory right, but of discretion only on the part of this Court.

In his petition relator asks for a writ of mandamus against the State Banking Board. As the basis for this, the following facts, in so far as necessary for us to consider them, appear in the petition:

On or about the 21st day of February, 1922, the First State Bank of Gary, a guaranty fund bank, failed, and was taken charge of by the Commissioner of Insurance and Banking, for the purpose of liquidation. Relator alleges that at that time he had a noninterest-bearing and unsecured deposit in the bank in the sum of $500. He states the facts upon which he bases this allegation, but since under our view of the law it is not necessary for us to consider this question, we will not state the pleadings in this respect. Relator then alleges:

"That heretofore towit on or about the 1st day of May, A.D. 1922, relator, in response to the notice of the Commissioner of Insurance Banking of the State of Texas, duly filed his claim within the time and in the manner required by law and asked that his said claim be paid as the law directs out of the cash immediately available in the said bank and out of the Depositors' Guaranty Fund of the State of Texas. That there is no reason why the relator's said claim upon the undisputed facts should not be allowed and paid in full out of such cash and out of the cash belonging to the said First State Bank of Gary, Texas, and out of the Depositors' Guaranty Fund. That respondents have declared a twenty per cent dividend to other depositors of said bank but refuse to pay relator said dividend of twenty per cent. That respondents have paid other depositors in said bank out of the Bank Guaranty Fund and refuse to pay relator his said claim out of said Depositors' Guaranty Fund. That respondents have no discretion in the premises to refuse to make these payments to relator, and it is their bounden ministerial duty to pay relator said twenty per cent. dividend as paid other creditors and to pay him the remainder of his claim out of the Depositors' Guaranty Fund of the State of Texas. That notwithstanding these ministerial duties rest upon respondents in favor of relator, they, the said respondents, have hitherto and still do fail and refuse to do and perform said ministerial duties. That relator has no other adequate remedy at law and will suffer great and irreparable injury unless respondents are compelled to perform and do their said ministerial duties."

It is to be observed that relator does not allege in this paragraph of his petition, nor in any other portion of his pleading, that his claim for $500 had been allowed as a claim against the bank. On the contrary, it is apparent from the petition that the Commissioner of Insurance and Banking has not allowed the claim as one against the bank. In such case this Court has no jurisdiction, since the District Court of the county of the bank's domicile is the one in which all actions on rejected claims must be brought. Kidder v. Hall, Commissioner. Opinion by this Court, but not yet officially reported. [113 Tex. 49, 251 S.W. 497.]

Relator tendered with his petition for mandamus a brief and argument on his motion for leave to file. In this the statement is found that the respondent Commissioner of Insurance and Banking had approved his claim as entitled to share in dividends out of the insolvent estate, but that he had refused to pay the claim out of the Depositors' Guaranty Fund.

The allegation that the claim had been allowed as one entitled to share in dividends of the insolvent estate does not appear in the petition for mandamus, and we will not examine the brief to supply this defect. Aside from this, the petition clearly shows that the Commissioner had refused to pay dividends on the claim, and this of itself shows that he had not approved the claim, or that the District Court had refused to allow dividends upon it. In either instance, this Court has no jurisdiction.

If there had been attached to the petition a certified or agreed copy of the claim, showing the Commissioner's action thereon, we would have been in a better position to judge of the merits of the petition. But no such copy is attached to the petition.

The motion for rehearing also states that relator's claim had been approved by the Commissioner as one entitled to share in dividends out of the insolvent estate, or approved as a general creditor's claim. We can not look to nor consider the allegations made in the motion for new trial in aid of the petition. The petition should have stated clearly the facts upon which reliance was made, and it is too late to do so in a motion for rehearing. Shirley Holland v. Connor,98 Tex. 63, 65, 80 S.W. 984, 81 S.W. 284.

The relator insists in his argument on his motion for rehearing that, at all events, we should require the Commissioner to pay him a twenty per cent, dividend as a general creditor. What we have said as to the failure of relator to state in his petition that the claim had been approved by the Commissioner as against the bank, disposes of this question. However, had the petition alleged that the claim had been approved by the Commissioner, without an additional allegation to the effect that a dividend on his claim had been directed by the District Court or the District Judge, as provided for in Revised Statutes, Article 469, the petition would still be fatally defective. Dividends on general creditors' claims can not be paid by the Commissioner, so long as the bank is in the process of active liquidation, without an order for this purpose from the District Court or District Judge of the county in which the bank was located and transacting business. Revised Statutes, Article 469; Kidder v. Hall, Commissioner, supra.

The statute reads:

"At any time after the expiration of the date fixed for the presentation of claims, the commissioner may, out of the funds remaining in his hands after the payment of expenses, declare one or more dividends, and, after the expiration of one year from the first publication of a notice to creditors, he may declare a final dividend, such dividends to be paid to such person and in such manner and upon such notice as may be directed by the district court, if in session, or the judge thereof, if in vacation, of the district in which such state bank was located and transacted business."

It is manifest that the Commissioner can only pay dividends when the District Court, or Judge thereof, administering the estate orders it. Relator does not allege that this court has authorized the payment of the dividend to him on his claim; and until the court, or Judge, has so authorized it, the Commissioner has no authority to pay it.

If in fact relator's claim as a common creditor has been allowed by the Commissioner, and the latter has not presented it to the District Court or Judge, then relator should have presented it to the District Court or the District Judge administering the insolvent estate for an order allowing the payment of a dividend thereon. If such an order is granted, the Commission will no doubt pay the claim, or appeal from the order. If the order is refused, relator has his remedy by appeal.

A re-examination of the petition for mandamus shows clearly that relator has not stated facts which show that either the Banking Board or the Commissioner of Insurance and Banking owed him a plain ministerial duty which they have failed to perform. In such case mandamus will not issue. Munson v. Terrell, 101 Tex. 220,105 S.W. 1114; DePoyster v. Baker, 89 Tex. 155, 34 S.W. 106.

We declined to permit the filing of relator's petition on the grounds here stated, and have not considered and do not pass upon any other question.

The motion for rehearing is overruled.