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(SYLLABUS) Suit for accounting brought by depositor on behalf of himself and all depositors of insolvent state bank against receiver, officers, and members of guaranty fund commission and secretary of department of trade and commerce, is proceeding in connection with insolvency, liquidation, or reorganization of bank, and, such, district judge has jurisdiction at chambers to perform acts with same effect as in open court. Comp. St. 1929, sec. 8-191. Statute not repealed by implication unless repugnance is plain and unavoidable. 3. All statutes relating to same subject are considered as parts homogeneous system and later utes are considered supplementary to preceding enactments on same subject. Statutes relating to subject, although enacted at different times, are IN PARI and should be construed together. Plaintiff who seeks of judgment term at which was rendered must allege and prove that he has valid cause of action; and to entitle him to relief court must judge that such cause of action FACIE valid. Where trial court after term vacates judgment against plaintiff and immediately reenters same judgment on the same record. there no adjudication that plaintiff cause action that valid. The legislature having power to limit the time within which appeal must be taken, essential to the jurisdiction of this court that be taken within that time limit. Trial court has no inherent power. directly or indirectly, to tend time for taking appeal. 9. Where statutes provide that an appeal must be perfected by filing transcript in supreme court, which must contain certificate that cost bond has been given, trial court has to extend time indirectly by vacating decree after term and entering the same judgment. Comp. 1929, 10. Members of guaranty fund commission were public officers vestwith quasi judicial functions quiring judgment and discretion. Laws 1925, 11. an officer is invested with discretion and is empowered exercise his judgment in matters brought before him, he is sometimes called quasi judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result an erroneous decision, provided the acts complained of done within the scope of the officer's authority. and without wilfulness, malice, corruption." 485, sec.
Heard before Goss, Rose, Dean, Good, Eberly, Day and DAY, This suit for an accounting brought by Morrill county as depositor of the Bridgeport bank, its behalf and on behalf of all other depositors similarly situated, against the members and agents of the guaranty fund commission of the state Nebraska. The guaranty fund mission took possession of the assets and business of the Bridgeport bank the 15th day of May, 1925, and it concern until the going 8th of September, 1927, during which period deposits solicited and loans made, the accepted, bank's paper was discounted, deposits withdrawn, and all the functions of bank were performed. It leged by the plaintiff that, while the bank was so operated, large amount of deposits were withdrawn, unlawful preference between depositors, the amount of which is unknown to plaintiff and only ascertainable by an accounting. The plaintiff alleges that, during this perof operation by the guaranty fund commission, certain permitted, and which moneys, were fact loans and therefore general claims, were withdrawn, and that the bank was, in fact, unlawfully liquidated while unlawfully operated as going concern. The gist of the action pleaded by plaintiff is in the petition as follows: by reason of the foregoing facts the assets of said bank placed in charge of the defendants who were members, officers and agents of the guaranty commission have become and depleted in in excess of which sum, had said assets been properly and legally administered, would have been available to the discharge of the indebtedness of said bank to this plaintiff and all other depositors and creditors ilarly situated." The trial court found in favor of defendants and entered decree in conformity to its finding, from. which appeals. This is the second appeal filed in this case. The first appeal was taken from decree entered February 1932, and motion for new trial, filed within three days, was overruled May 1932. Defendants filed motion to dismiss this appeal for that no cost bond had been filed and no cash deposit to cover costs or supersedeas bond had been filed as required by section Comp. St. 1929. appearing from the transcript that cost bond had been filed within days from the final order, as providby statute, in conformity to the rule announced by this court in Greb Hansen, Neb. 426, the former appeal was dismissed September 26, 1932, for lack of jurisdiction. On August 29, 1932, during the 1932, term of court, the trial judge in Morrill county, not at the county seat but at Bayard, set aside the order of May 1932, overruling motion for new trial, and the motion was submitted to him and overruled. Later, September 14, 1932, the court at Bridgeport, the county seat of Morrill county, again set aside the order of May 1932, overruling the motion for new trial and, on consideration, the motion was again overruled. on September 1932, the plaintiff's attorneys claim they learned for the first time that the decree of February 1932, had been signed by the trial judge at chambers in Gering, Scotts Bluff county, and was sent to the clerk of the district court at Bridgeport, who entered it on the journal, showing that had been signed by the judge at chambers at Gering, Nebraska. At that time plaintiff filed motion that the decree of February 1932, be held to be void and be set aside on the sole ground that the decree was signed by the trial judge at chambers in Gering, Nebraska, stead of in open court at Bridgeport, Nebraska, and that the motion for new trial with drawn and all orders relative thereto be expunged from the record. October regular day of the May term, the court sustained the motion and reentered the same decree, and overruled plaintiff's motion for trial, filed the same day. This appeal was taken from the decree and order overruling motion for new trial entered October 1932. The appellees, except Bliss, filed motion in this court to dismiss this second appeal for that the transcript was not filed in this court within three months from the rendition of final judgment; that it is an appeal from judgment entered October 1932, which decree is identical with dated February 1932, except the date, from which an appeal was dismissed, and that the reentry of the judgment on October 1932, was for the sole purpose of extending the statutory time perfecting an appeal to this court. This motion to miss the appeal was argued before this court and ruling thereon reserved until the case was submitted upon the merits. demands consideration first. As heretofore noted, the original decree in this was signby the trial judge at chambers at Gering, Scotts Bluff and county, transmitted to the clerk of the trict court for Morrill Did county. this render the decree The judges of the various district courts, have no inherent authority chambers except such they are expressly given by law. The stitution provides: several of the courts of record shall have such jurisdiction at chambers be provided by law. "Const. 23.
By section Comp. St. 1929, the legislature has conferred certain powers upon district judges at chainbers, which section however did not authorize the act of the trial judge in signing the decree in this case. However, section Comp. St. 1929, specifically provides that, in such this, judge the district at chambers shall have jurisdiction to perform certain judicial acts. This is suit for an accounting brought by the plaintiff on behalf himself and depositors of the defunct Bridgeport bank to cover alleged losses of the bank while run by the guaranty fund commission. This money, if recovered, would have to be distributed among the depositors of said bank. The receiver party to this action. involves the of this bank from the when it covered to be and, such, within the statute. Section 191, Comp. St. 1929, provides as lows: any proceeding in tion with the insolvency, liquidation reorganization of bank, of the district court shall have jurisdiction in county in the any district for which he elected to perform any official act in the ner and with the same effect he might the county in which the matter arose, or to which it may have been transferred, and he may perform any such act in chambers with the same effect in open In this connection, see State Neligh State Bank, 116 Neb. 858, This suit is proceedin connection with the insolvency. liquidation, or reorganization of bank, and, as such, jurisdiction was conferred by the statute the upon district judge at chambers to perform official acts in the manner and with the same effect he might in the counin which it arose. But the appellant argues if the legislature by the enactment of section Comp. 1929, intended to amend section Comp. St. 1929, then such enactment would be unconstitutional, because the title of the act was not broad enough to clude such amendment. However, section Comp. St. 1929, not amendatory of section 27-317, Comp. St. 1929, but an independent act which confers jurisdiction upon judges of district courts at chambers addition to others under the stitutional provision heretofore quoted. This court has definitely passed upon this question pears as section Comp. 1929, relating to the confirmation of judicial sale, amended in 1875 adding proviso that the judge the district court might confirm mortgage foreclosure sale under certain conditions at vacation. Laws 1875, 38. In this court was required to decide whether this tute authorizing the confirmation of sales in vacation was repealed by the passage of what is section Comp. St. 1929, without later which took effect March 1879. The argument of Judge Maxwell so aptly meets the contention of the appellant that we quote with the ommission of supporting authorities. is evident, however, that there no repugnancy between the several provisions. statute will not be pealed by implication unless the pugnancy between the new provision and the former statute is plain and unavoidable. In this there case, no repugnancy between the statutes, and the earlier one is not pealed by the Lawson Gib18 Neb. 137. To the same effect Beatrice Paper Beloit Iron Works, 46 Neb. Applying the rule to this case and paraphrasing the language, section 8-191, Comp. 1929, does not amend section Comp. St. 1929, by implication otherwise, because the provisions not repugnant, and they must be construed together. Statutes relating to the subject, although enacted different times, are in pari and should be construed together. State Omaha Elevator Co., Neb. 637; 25 1067, Lewis' Sutherland, Statutory Construction, 844, gives the rule: tutes which are not inconsistent with one another, and which relate to the same in pari teria, and should be construed gether; and effect should be given them all, although they contain reference to one another, and passed at different times. Acts pari materia should be construed gether and so as to harmonize and give effect to their various proviRohrer Hastings Brewing 83 Neb. 111; Board of Commissioners Aetna Life Insurance Fed. 222; State Gerhardt, 439; Scarangello Pacione. 126 Supp. 714; Village of North Fargo City of Fargo, Dak statute will not be construed lier statute, unless there plain and unavoidable repugnance. State Omaha Elevator Co., 75 Neb. held: statutes the upon general subject are to be regarded of one and later part system, tutes are to be considered supplementary or complementary to those preceding them on the same Section Comp. St. 1929, an independent and deals with the same general subject as section Comp. 1929, and is not amendatory but and complementary to it. It therefore follows that, since the trial judge was authorized by statute the decree in the case sign at bar at chambers, said decree tered February 1932, was valid Now, the vacation of the decree on October 1932, was solely the ground that, since rendered and signed at chambers, null void. valid judgment can only be vacated after the it was rendered on the application of plaintiff after adjudged that there is valid cause of action. Comp St. 1929, sec. 20-2005. is ficient that the petition state cause, contended by appellant, but applicant must allege and prove valid cause of action. Bond Wycoff, Neb. And in Gilbert Marrow, Neb. held: party who seeks the vacation of judgment after the term at which it was rendered must allege and prove that he has valid cause of action or defense, and to entitle him to lief the court must adjudge that such cause of action or defense is prima facie valid." But there was no such adjudication in this case. The trial court erroneously found the decree pull and void for that it was signed at chambers in another county. was after the term at which rendered. The same judgment was forthwith, without further testimony, immediately reentered, the same cree with the exception that the date was changed. It is obvious from the history of this case that the purpose in vacating the original decree and reentering the same decree was to extend the time for perfecting an appeal. The legislature has general power to fix the time limit for taking an appeal and having prescribed such time, the trial court has no power extend the time directly or indirectly. In 104, it is said: legislature has general power to prescribe the time within which writs of error may be sued out or appeals taken, and it essential to the jurisdiction of the appellate court that the proceeding be taken within the time limited, and the trial court has no inherent power to extend the time, either directly or indirectly. Thus, where an appeal has not been taken within the required time, the court has no power indirectly to tend the time for appealing by cating, for such purpose, the ment, order or decree, and entering of later date." said: tension of time cannot be made directly by repeating the judgment, order, or decree, by an amendment modification not changing its legal effect, by motion to vacate the same, by vacating and reentering refiling it as of recent In Chicago Co. Bend Drainage District, 208 Pac. 872 (29 50) it was held: attempt of the court to reinvest right apeal that has been lost by lapse of the time allowed by Comp. St. 1929, 6202, by vacating the order appealed from and reentering der later date is improper, and the appeal will be dismissed; there beno claim of fraud or mistake in the original entry of the order." In Philbrock Home Drilling 117 Okla. 266, it was held: trial court cannot extend time for peal by vacating the order or decree. and reentering as of more recent In Credit Co. Arkansas Central Rv Co., 258, it was said: attempt made, in this case, to anticipate the actual time of presentand filing the appeal, by enteran order nune tune, does not help the case. When the time for takan appeal has expired, it cannot be arrested or called back by simple order of court. If it could the law which limits the time within which an appeal be taken would be dead letter." The statutes of Nebraska prescribe the time within which appeal may be taken to this court, and is sential to the jurisdiction that the appeal be within the time limit (Comp St. 1929, by filing transcript three months Alexander, 111 Neb. which shall contain certificate that cost bond has been giv(Comp. St. 1929, sec. Greb Hansen, 123 Neb. 426). And the trial court has no power to extend the time either directly or indirectly. such case, where an appeal has not been taken in time, where cost bond has not been filed within time, the court has no power indirectly to extend the time for by vacating after term, for such valid judgment. and purpose, entering it as of later date. Sin this represents an fort to extend the time of appeal from the judgment of February 1932, the appeal is dismissed. Since appellees did not in the motion to dismiss, brief cussion of the merits of contention will be proper. The defendant Bliss was, during part of the time involved this secretary of the department of trade and merce of the state of Nebraska, and, such, an officio member the guaranty fund commission. The other defendants either members of the commission or its agents. The fendants were public officers of the state of or their employee: The state has control, supervision, and inspection of all state banks. guaranty fund commission was charge of the bank under the provisions of the law public ficers. The cases citied by the appellant do not negative this proposition. The commission was created and appointments to it made the with the consent of the senate. They required take the oath required of county cers, give bond for faithful performance of the duties, and an assessment was levied upon state banks under the police power to pay the expenses and compensation the commission. have held that suits against the bank while in charge of the commission were not suits against the state. an opinion by Redick, District Judge, commission an agent appointed by the state to take charge of and manage the ness of the defendant Svoboda Snyder State Bank, 117 Neb. department of trade and commerce and the guaranty fund commission were created by statute governmental agencies of the state and as trustees for the beneficial owners of trust funds coming into the custody of such agencies.' Bliss Continental Nat. Bank, Neb. 568. Some decisions have referred to the state banking department as trustee of trust fund. There nothing inconsistent with public official and trustee. But in the case of the guaranty fund commission had public officials exercising the control of the state over the quasipublic business of The which the defendants took possession of the Bridgestate bank and operated conferred upon them as members of the fund commission section Laws 1925: ever the department of trade and commerce, from any examination or report provided for by this article, that the capital of any corporation transacting banking business under this article is impairsuch department may forthwith take possession of the property and business of such bank, and place in charge of the guaranty fund commission, who shall duct the affairs of said bank, and who shall retain possession of money, rights, credits, assets and property every description belongto such bank, against mesne or final process issued by any court against such bank or corporation whose property has been taken, and may retain such possession for sufficient time to make an examination of its affairs, and dispose thereof provided by law. Any attachment lien against such property, acquired within thirty days next ceding the taking such shall be thereby released and dissolved." This statute was construed in Metropolitan savings Bank Trust Farmers State Bank, Fed. (2d) wherein was held the commission was required to determine within reasonable time whether to operate bank as concern" under section 30 1925, or to liquidate it through section of the same law. In its determining of the future fate of bank. the commission exercised its discretion and judgment. Quoting further from the opinion Metropolitan Savings Bank Trust Co. Farmers State Bank, 20 (2d) 775: our view, the plain meaning of this provision that, when the commission first takes charge and possession bank, merely preliminary, for the purpose of making an examination and 'disposing of the bank provided by law,' which means that the commission must, within sonable time, make its choice whether to operate it 'as going concern' liquidate through receivership. During this while determining which course to adopt, the commission is empowered to hold possession of the money and property of the bank,' as against any or final issued The commission directed in its duties by statute. Section 4, ch. Laws 1925, provides: taking possession the property and busibank, the guaranty fund commission may take charge and on page
