Ex parte RENFRO, 273 S.W. 813

CURETON, C. J. This is a habeas corpus proceeding arising' out of facts which will be stated. The Associated Employers’ Reciprocal is an indemnity interinsurance exchange organized under

chapter 6, title 71, of the Statutes of this state, providing for the exchange of reciprocal contracts of indemnity. Acts of 1915, c. 156 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4972a et seq).

On September 2, 1924, this association deposited in the Farmers’ & Mechanics’ National Bank of Fort Worth, Texas, of which the relator, Elmer Renfro, is cashier, the sum of $10,000, receiving therefor a certificate of deposit, reading as follows: “Certificate of Deposit. “The Farmers’ & Mechanics’ National Bank of Fort Worth. “No. 6085. $10,000.00. “Fort Worth, Texas, Sept. 2, 1924. • “Associated Employers’ Reciprocal has deposited in this bank ten thousand dollars, 00 cents, payable to the order of same on the return of this certificate properly indorsed 12 mo. after date of July 1st,, 1924, at 4 per cent, per annum. ’ E.

Renfro, Cashier. “Not subject to check. “No interest will be allowed on this certificate of deposit after the time mentioned in writing has elapsed.” It is to be observed that this certificate of deposit is in the usual and ordinary form, and was not due and payable at the time of the proceedings in issue here, and will not be until July 1, 1925. Some two or three different receivers were appointed of the Associated Employers’ Reeinrocal, and there was and is a serious conflict of jurisdiction of the various courts appointing these receivers. One of these conflicts, that involving the appointment of J. W.

Mingus, receiver, by the district court of Stevens county, is now under submission in this court. It is unnecessary for us to decide which court had the right to appoint a receiver in this ease. That question is reserved for determination in the other case now pending here. This habeas corpus proceeding -arises out of proceedings had in the Sixty-Seventh district court of Tarrant county, which appointed George B. Gay receiver of the Associated Employers’ Reciprocal. Neither the relator nor the bank of which he is cashier was a party to the receivership proceedings in that court.

On the 2d of December, 1924, the Tarrant county district court, -without any notice or hearing, made and entered an order, on the application of its receiver, George B. Gay, directed against the Farmers’ & Mechanics’ National Bank and the relator, ordering and directing the bank to immediately pay over and deliver to the receiver the sum of $10,-000 standing to the credit of the Associated Employers’ Reciprocal in the bank, and which is evidenced by the certificate of deposit just quoted.

The bank having failed to pay over the money as directed, Gay, the receiver, instituted proceedings to have the bank and the relator, its cashier, adjudged guilty of contempt. The court made and entered an order reciting the failure of the bank to pay the deposit: of $10,000, and adjudged the bank and the relator guilty of contempt.

By the terms of the order a fine of $100 was imposed on the bank, and a like fine on the relator, and relator was placed in the custody of the sheriff of Tarrant county to be imprisoned in tlie county jail until he paid the fine imposed on him, and until he should turn over and deliver to Gay, the receiver, the $10,000 referred to, and pay the costs of the contempt proceedings. The commitment was issued, etc., and the relator was in -the hands of the sheriff when his application for writ of habeas corpus was made to this court. It is obvious that the court had no power to enter the order upon

summary proceedings requiring the bank and the relator to pay the $10,000 deposit to Gay, the receiver. The general rule is well established that a receiver cannot ordinarily, through

summary proceedings, take into custody property found in the possession of strangers to the record claiming adversely. The principle upon which the cases announcing this rule generally rest is that the receiver merely stands in the place of and has no greater rights than the party over whose property he has been appointed receiver; that every one is entitled to his day in court, and that

summary proceedings are not, suitable to try conflicting claims of title. The ordinary course to pursue in such cases where a receiver desires to obtain possession of property in the hands of a stranger to the receivership suit, claiming adversely, is either for the receiver to bring an action against the third party, or for the plaintiff to make him a party to the suit and have the receivership extended to him. Contempt proceedings aré not appropriate. 23 Ruling Case Law, p. 60, and cases cited in the notes; Tardy’s Smith on Receivers (2d Ed.) vol. 2, p. 2093; Beach on Receivers, § 245; Ex parte Tinsley, 37 Tex.

Cr. R. 517, 40 S. W. 306, 309, 66 Am. St. Rep. 818; State ex rel. Parsons Min. Co. v. McClure, 17 N. M. 694, 133 P. 1063, 47 L. R. A. (N. S.) 744, Ann. Cas. 1915B, 1110; and many cases cited in the notes; Baldwin v. Hosmer, 101 Mich. 119, 59 N. W. 432, 25 L. R. A. 739; Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372, 38 Am. Dec. 551; Ex parte Hollis, 59 Cal. 405; Havemeyer v. Superior Court, 87 Cal. 267, 25 P. 433, 10 L. R. A. 650; Metcalfe v. Commonwealth Land & Lumber Co., 113 Ky. 751, 68 S. W. 1100; St. Louis, K & S. Ry. Co. v. Wear, 135 Mo. 230, 36 S. W. 357, 658, 33 L. R. A. 341; White v.

Gates, 42 Ohio St. 109; Tapscott v. Lyon, 103 Cal. 297, 37 P. 225; State v. Denham, 30 Wash. 643, 71 P. 196; Hook v. Bosworth, 64 F. 443, 12 C. C. A. 208; Christie v. Burns, 83 Ill. App. 514; People v. U. S. Law B. & S. Co., 24 Misc. Rep. 535, 53 N. Y. S. 852. It is useless to quote the authorities, as they amply support the contention of the relator, and are available. We recognize the proposition that a different rule might prevail where one holds the property merely as trustee or agent, and-does not claim an adverse interest. 23 Ruling Case Law, p. 61, § 67. No such case, however, is presented to us.

The certificate of deposit before us evidences an ordinary deposit contract, and does not import any fiduciary or trust relation. Leaphart v. Commercial Bank, 45 S. C. 563, 23 S. E. 939, 33 L. R. A. 700, 55 Am. St. Rep. 800. It is true that

chapter 156, General-Laws of the Thirty-Fourth Legislature, requires that each interinsurance association file a declaration with the insurance com-, missioner showing various things requisite to the right to transact business—among other things, that there is on deposit with some state or national bank, as a depository for the payment of losses, not less than the sum of $10,000. It is contended that this statute necessarily makes the bank trustee of this particular $10,000 involved in this case.

The bank denies this, and, aside from that, contends that the deposit was of the ordinary character, evidenced by the deposit certificate, and that it was not due and payable when demand for its payment was made by the receiver. This affirmation and denial of course make a justiciable question, and the bank and its cashier were clearly entitled to try the question under due process of law: that is, 'before a .tribunal properly erected under the Constitution, upon notice and hearing as provided for by the Constitution and Statutes.

In this case neither the-bank nor the relator was given due process of law in determining the question that the bank ought to pay to- the receiver the $10,000 involved. The

summary judgment directing them to make this payment was therefore void. Authorities, supra; 6 Ruling Case Law, p. 446, § 442, p. 456, § 452. The district court being without power to enter the

summary order directing the payment of the $10,000 involved, and having directed its payment without due process, the order will not support contempt proceedings. 6 Ruling Case Law, p. 505, § 17, and cases in note 4; In re Havlik, 45 Neb. 747, 64 N. W. 234; State v. District Court, 21 Mont. 155, 53 P. 272, 69 Am. St. Rep. 645; Dodd v. Una, 40 N. J. Eq. 672, 5 A. 155; People v. Weigley, 155 Ill. 491, 40 N. E. 300; St. Louis, K. & S. Ry. Co. v. Wear, 135 Mo. 230, 36 S. W. 357, 658, 33 L. R. A. 341; State ex rel. Evans v. Winder, 14 Wash. 114, 44 P. 125; see, also, the case of McHenry v.

State, 91 Miss. 562, 44 So. 831, 16 L. R. A. (N. S.) 1062, and cases in the notes. The decree punishing relator for contempt is therefore void, and he is discharged. 'ii=s>Eor other cases-see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes