
    SLIMMER & THOMAS, Respondents, v. MEADE COUNTY BANK et al., Appellants.
    (162 N. W. 536.)
    (File No. 3998.
    Opinion filed May 5, 1917.)
    Banks and Banking — Insolvent Banks — Judgment as Preferred Claim —Pro-rated With Other Preferred Claims — Unsatisfied Balance, Pro-rated With General Claims.
    In a suit tiy mortgagees a-gainst defendant insolvent hank and the Public Examiner, in which judgment for plaintiff was rendered/ to establish a preferred claim, held, that the judgment below, wherein it unqualifiedly requires said officer to (pay the judgment in full, irrespective of other preferred claims or sufficient funds to pay any preferred claims in full, should be modified so as to provide for payment of said claim from bank assets before distributing the latter to general creditors; but if assets are insufficient to pay all preferred claims in full, then the latter shall .pro-rate; and if said judgment be not thereby satisfied, tbe balance thereof to 'be paid pro-rata with other general claims. Former opinion adhered to.
    On application for rehearing.
    Former opinion adhered to, but original judgment modified, and application denied.
    For former opinion, see 161 N W. 325, 38 S. D. 311.
    See, also, 34 S. D. 147, 147 N. W. 734.
   McCOY, J.

The opinion in this case will be found in 161 N. W. 325. On motion for rehearing the appellant contends that the original judgment appealed from unqualifiedly requires the public examiner to pay said judgment in full, irrespective of whether !or not there be other preferred claims or sufficient funds to pay any of said preferred claims in full. We are of the view-that the original judgment is deficient in this -particular, and the same may be modified by making the last paragraph thereof read as follows;

It is further ordered, adjudged, and decreed that said judgment is a preferred claim against the assets of the Meade County Bank of' Sturgis, and the defendant, J. L,. Wingfield, as public examiner of the state of South Dakota, or his successor in office, in charge of said Meade County Bank, is hereby ordered, adjudged, and decreed to pay said judgment out of the assets of said bank before distributing said assets to> the general creditors! of said hank; but in the event there be not sufficient funds in the assets of said bank in the hands of said public examiner to -pay this and all other preferred claims in full, if any other preferred claims there he, then this preferred claim shall be paid pro rata with all preferred claims, and, in the event that this judgment be not satisfied in full as a preferred claim, then the balance thereof remaining shall be paid pro rata with general claims.

The opinion heretofore rendered is adhered to, but the original judgment is modified as above indicated, and. the motion for rehearing denied.  