Petition for rehearing denied February 5, 1935 ON PETITION FOR REHEARING (40 P.2d 1017) In a commendably clear and dispassionate petition by defendants for rehearing, as well as in a brief by amicis curiae, we are again urged to *Page 359 hold that under the terms of section 22-2009, Oregon Code 1930, as amended by section 29 of chapter 278, Oregon Laws, 1931, the owner of property, which is in the possession of a bank as bailee, when the superintendent of banks takes possession of such bank, is without any remedy except that within ninety days after the first day of publication of the notice prescribed in said section, he may file a claim with the superintendent of banks, and, if this be disallowed, he may upon ten days' notice to the superintendent of banks institute an action in the circuit court within three months after notice of such disallowance.
To so hold would be to ignore and disregard the provisions of section 22-2016, Oregon Code 1930. These provisions impose duties upon the superintendent of banks entirely inconsistent with the theory that the limitations and restrictions applicable to claims against the assets of the bank, as prescribed in said section 22-2009, as amended, are controlling upon the owners of property, which is not any part of such assets, but is simply held by the bank as bailee.
Among these provisions is one requiring the superintendent to keep such property in one of the general safes or boxes of the bank. Another requirement is that notice be given to the owner of such property to remove said property within ninety days. It is also provided that if any such property be not removed within the time fixed by the notice of the superintendent, he shall retain the same for a period of six months thereafter unless removed by the owner prior thereto. After so retaining said property, the superintendent may then sell the same under the direction of the circuit court and hold the proceeds of such sale for the benefit of the owner of such property. *Page 360
It is apparent that the owner of property, held by the bank as bailee, is thus accorded the privilege of removing his property from the bank at any time within ninety days from the date of notice from the superintendent to do so. It is equally apparent that it is the duty of the superintendent of banks to give such notice.
To hold that the owner of property so bailed is foreclosed of his right to recover possession thereof, in the absence of any such notice from the superintendent of banks, would be a violation of the spirit and purpose of these provisions of said section 22-2016.
We find no point to the suggestion that if the original opinion is upheld, "all manner of litigation for years after a bank has come into the hands of the banking department for liquidation can be instituted and carried on". Here the only remedy considered is one for the recovery of the possession of property by its owner. Such owner is subject to, as well as protected by, said section 22-2016. When the statutory notices have been given, if the owner fails to remove said property in accordance therewith, a sale thereof may be made under an order of the circuit court, and thereafter such owner can recover only the proceeds of such sale. Two years following the date of the final order closing the liquidation of said bank, such proceeds, if still in the possession of the state banking department, shall be paid to the state treasurer; and the same may be reclaimed by the owner within the time and in the manner as provided for estates which have escheated to the state. Section 22-2018, Oregon Code 1930, as amended by section 7, chapter 67, Second Special Session Laws, 1933, p. 190.
The vice of defendants' position is that it is assumed that this proceeding is an attempt to enforce a claim against the assets of the bank. It is not such a case. *Page 361
Amici curiae contend that said section 22-2016 applies only to those cases where the records of the bank affirmatively show that the bank is not the owner of the securities in question.
The effect of such a construction is that an owner of property, which is in possession of the bank as bailee, is bound by the records of the bank when the superintendent of banks takes charge; and that, unless such records disclose that the property in question is held by the bank as bailee, the owner thereof is relegated and restricted to a mere claim against the assets of the bank. We are unwilling to give such a construction to the statute. Even in the matter of the notice to be mailed by the superintendent of banks, the statutory requirement is that such notice be sent "to the person claiming to be or appearing upon its (the bank's) books to be the owner of such property". It is necessarily implied that only those, who rightfully claim such property, should be permitted to remove it.
In their brief, amici curiae also comment upon the sufficiency of plaintiff's complaint with respect to its allegation of plaintiff's right of possession and the situs of the property. These matters have been carefully considered by the court. In fact, on oral argument, they were specifically mentioned by members of the court, but not urged by defendants. We hold that, though defective, the complaint, after issue joined, is not vulnerable to a motion for judgment upon the pleadings.
The petition for rehearing is denied.
BEAN and BAILEY, JJ., concur. *Page 362