
    No. 726
    SCOTT v. SAUNDERS
    U. S. Appeals, Sixth Circ., Cincinnati
    No. 3898.
    Decided June 6, 1923.
    02. CONSPIRACY.'
    May maintain action against conspirator having iossession of a fund without joining other conspira-ors.
    4. BANKS AND BANKING.
    State superintendent in charge of insolvent hank ucceeds to rights and liabilities of bank — May be Ktired to restore from the assets a sum frauduly acquired by the bank.
    66. ERROR.
    Decree will not be reversed for absence of un-ecessary but proper party, where application for as not made, and no error was assigned.
    Attorneys — H. D. Palmer (C. C. Crabbe, Atty. Gen. and D. E. Green, on brief), for Scott; D. P. Conway (J. Kennedy, on brief), for Saunders.
   ONAHUE, J.

Epitomized Opinion

Appeal from District Court of Northern District f Ohio. Suit in equity by Saunders against Scott, iperintendent of Ohio banks. Saunders was the other of R. M. Saunders, who died intestate, leav-g a widow as the only surviving heir besides the other. By the law of Pennsylvania, of which ate deceased was a resident at the time of his :ath, the widow was entitled to $5,000 and to one-ilf part of the remaining real and personal propty, and the mother was entitled to one-half the tate in excess of the first $5,000 to the widow,

^^feased owned two policies of life insurance by HWmutual Life Insurance Co., aggregating $25,-lo. The policies were originally made' payable the Struthers Savings and Banking Co. to secure e payment of money borrowed by deceased from e bank. Prior to his death he had fully paid the pk, and th« policies had been turned over to him, d he transmitted them to the insurance company make them payable to his estate. Before the ange was made, Saudners died and Wilson was pointed his administrator. Thereupon the In-rance Co. transmitted the policies !to Wilson, ving made them payable to him as trustee of the ;ate. Wilson, in collusion with the widow, the i-uthers Savings and Banking Co., and others, 'ivered the policies to the Struthers Bank and its iasurer represented to the Insurance Co. that the nk was entitled to the amount payable on the licy. The bank presented a claimant certificate i the insurance company paid the bank $25,000. ion receipt of this money, the bank issued to : widow pass books for this amount,

it the time the bank received this money, it s insolvent, and shortly thereafter the bank was ordered closed by the state banking department and the assets of the bank, including the $25,0>00, were turned over to the bank superintendent, who allowed the claim of the widow as evidenced by her pass books as a valid claim against the bank and paid to her two payments, aggregating about 50 per cent'of the total amount. Wilson, the administrator, filed a final account in Pennsylvania and the estate was closed. Wilson, by decree of the Pennsylyania court, had paid all but about $50 of the $5,000 due to the widow. The administrator and the widow were made parties defendant but were not serced with summons, and did not enter their appearance.

The trial court ordered the bank superintendent to pay the mother one-half the amount due on the policies, namely the sum of $11,950.67.

Scott’s petition for appeal was allowed, and he assigned as error that the insurance company was jointly responsible and ought to have been held liable in contribution. Before the hearing, by consent, the insurance company was dismissed as a party. Though not assigned as error, it is claimed as plain error that there was an absence of indispensable parties in the District Court, in that thedecree will not protect Scott from claims that may be made by the widow and administrator against the funds in his hands as liquidating officer. In affirming the judgment of Judge Westenhaver, the Circuit Court of Appeals held:

1. The mother of the deceased could have maintained an actionat law against either one of the wrongdoers who entered into this conspiracy and collusion without joining any of the other parties thereto. In this case, she brought within the jurisdiction of the court, not only a party to the fdaudulent scheme, but also sufficient ofthe fund that had been diverted from the estate to satisfy her claim for her distributive share of the estate of the intestate.

2. An appellate court will not reverse a decree otherwise correct because of the absence of a party who might have been brought in for the protection of the defendant, but for which no application was made, and upon which error is not assigned.

3. A state superintendent of banks who is in possession of the assets of an insolvent bank in which is included a sum fraudulently acquired by the bank is in no better position than the bank to defend against a suit for its recovery, and may be required to restore it from the assets. Though Scott was not a party to the fraud, he assumes the assets and liabilities of the insolvent bank.  