
    INNES v. STATE BANKING BOARD et al.
    (No. 5906.)
    (Supreme Court of Texas.
    June 30, 1923.)
    On Motion for Rehearing.
    1. Courts <@=3209(2) — Filing motion for rehearing of order refusing mandamus discretionary.
    Filing of 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.
    2. Banks and banking &wkey;>80( 100 — Action on rejected claim must be brought in county where bank domiciled.
    Action on claim against insolvent bank rejected by commissioner of banking must be brought in the county of the bank’s domicile and where such commissioner has not allowed the claim as one against the bank, the Supreme Court has no jurisdiction in mandamus to compel payment out of the bank guaranty fund.
    3. Courts <&wkey;>209(2) — Defects in petition for mandamus not supplied by examination of brief.
    In motion for leave to file petition for mandamus to compel the state banking board to pay relator from the bank guaranty fund a certain dividend, where the allegation that relator’s claim had been allowed as one entitled to share dividends does not appear in the petition, but in the brief, the Supreme Court will not examine the brief to supply such defect.
    4. Courts <@=>209(2) — Petition for mandamus held not to allege jurisdictional facts.
    On motion for leave to file' petition for mandamus to compel the state banking board to pay from the bank guaranty fund a dividend on relator’s claim against an insolvent bank, where the petition shows that the commissioner of banking had not approved the claim, or that the district court had refused to allow dividends on it, the jurisdiction of the Supreme Court was not shown.
    5. Courts &wkey;>209(2) — Defects of petition for mandamus not aided by allegation in motion for new trial.
    Where petition for mandamus to compel the commissioner of banking to pay relator a dividend out of the bank guaranty fund, was defective, in that it did not show that the commissioner had approved the claim or that the district court had refused to allow dividends on it, the Supreme Court cannot look to, nor consider, allegations made in motion for new trial in aid of such petition.
    6. Banks and banking <@=>80(9) — Dividends on general creditor’s claim not paid by commissioner while bank in process of active liquidation without order from district court or judge thereof.
    Under Rev. St. art. 469, dividends on general creditor’s claim cannot be paid by the banking commissioner so long as a 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.
    7.Mandamus <@=>154(4) — Petition held Insufficient for mandamus to issue.
    Petition held not to state facts to show that either the banking board or the commissioner of banking owed him a plain ministerial duty which they had failed to perform.
    Original motion for leave to file petition for mandamus by S. R. Innes against the State Banking Board and others.
    Motion overruled.
    T. H. McGregor, A. L. Love, and Gofer & Cofer, all of Austin, for relator.
   PER CURIAM.

Motion for leave to file petition for mandamus overruled.

On Motion for Rehearing.

GURETON, C. J.

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, to wit on or about the 1st day of May, A. D. 1922, relator in response to the notice of the commissioner of insurance and 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, Tex., and out of the depositors’ guaranty fund. That respondents have declared a 20 per cent, dividend to other depositors of said bank, but refuse to pay relator said dividend of 20 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 20 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, 251 S. W 497. (Opinion by this Court, but not yet officially reported).

Relator tendered with his petition for mandamus a brief and argument on his mo^ tion 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 it as a general creditor’s claim. We cannot 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. Conner, 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 20 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 cannot 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 commissioner 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 hoard 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; De Royster 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. 
      <gr=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     