162 Ga. 718 | Ga. | 1926
The ruling announced in the first headnote does not require elaboration.
It remains to consider the case as made by the answer in the nature of a cross-petition. This counter-claim related to the same statutory liability for the benefit of depositors, to which the execution issued by the superintendent of banks referred. It was insisted that the office of superintendent of banks being a creature of the statute, and the statute having provided, in section 20 of article 7, a remedy by issuance of execution, to be employed by the superintendent of banks in collecting the statutory liability, that remedy was exclusive and therefore the superintendent of banks could not maintain a suit in the courts to recover such liability. The statutory liability arises under section 1 of article 18 of the act of 1919 (Acts 1919, p. 135), which in part declares that “each stockholder . . shall be . . individually liable, equally and ratably (and not one for another), to depositors of such bank for all moneys deposited therein, in an amount equal to the face value of their respective shares of stock.” This clause is substantially a restatement of a similar provision in the act. of 1893 (Acts 1893, p. 70, section 8). Prior to that act there was no general leuw creating such stockholder’s liability. Wheatley v. Glover, 125 Ga. 710 (3) (54 S. E. 626). Referring in part to the same liability, it is declared in section 7 of article 18 of the act of 1919: “The individual liability of stockholders . . shall be assets of such bank, to be enforced only by and through the superintendent of banks.” In section 7 of article 7 of that act it is declared: “The superintendent shall collect all debts due and claims belonging to such bank.” This part of the act was amended by the act of 1922 (Acts 1922, pp. 63, 65), where it was declared in'part as follows: “Eor the purpose of executing any of the powers and performing any of the duties hereby conferred upon him, the superintendent may, in the name of the bank, institute, prosecute, and defend any and. all actions, suits, and legal
Sufficient has been said concerning the act of 1919 as amended to distinguish the case from State v. Western & Atlantic Railroad Co., 136 Ga. 619 (71 S. E. 1055), and similar cases. That case referred to a statute creating a tax, and concerning it it was held: “When the statute undertakes to provide adequate remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie.” That ruling does not oppose the ruling made in the present case, which is founded on express provisions of the statute as amended, giving the superintendent of banks power to sue.
Another contention of the plaintiff was that it was not liable, because it was purely a banking institution created under the laws of this State and prohibited by the provisions of section 23 of article 19 of the general banking act (Acts 1919, pp. 135, 201)
The facts of the ease do not bring it within any of the exceptions, and it is not necessary to state them. The plaintiff bank, organized under the laws of this State, was engaged in the ordinary banking business, in the usual course of which it received, as collateral security for a debt, shares of the capital stock in the Bank of Donalsonville, which it subsequently sold under a power of sale and purchased, receiving a new certificate of stock, under private agreement to give the borrower the benefit of any subsequent sale it might be able to make of the stock. By this transaction the plaintiff did not “subscribe for or purchase” the shares of stock within the meaning of the foregoing statute. The words just quoted from that statute were used synonymously, and were intended to prevent banks from subscribing for shares of stock in another bank or purchasing such shares as an independent transaction, and not to deny power to a bank to accept in good faith shares of stock in another bank as collateral security for a valid debt, or to become the purchaser thereof at a sale had for the purpose of collecting such valid debt. In this view it becomes unnecessary to consider whether the statutory liability would attach to the plaintiff if the act of acquiring the stock had been ultra vires.
There was evidence to the effect that the plaintiff was the holder of certificate number 223 for the 36 shares of the capital stock in the Bank of Donalsonville; that it acquired the stock in the following manner: The plaintiff received two certificates of stock of said corporation, one for 20 shares and another for 16 shares, from J. S. Shingler in pledge as collateral security to a promissory note executed by Shingler to the plaintiff. Payment of the note was in arrears, and the plaintiff was unable to find a purchaser at private sale for the shares of stock, and finally, under exercise of the power of sale contained in the note, exposed the shares of stock at public sale before the court-house door. By consent of Shingler the sale was without previous advertisement and upon an agreement between himself and the plaintiff that, if the
A statute was embodied in section 9 of the special act of 1889 (Acts 1889, pp. 522, 527), creating a charter for the Brunswick State Bank. It was there declared: “The stockholders . . shall be [liable] to the creditors of such corporation, . . individually . . equally and ratably, and not one for another as sureties, , . for all contracts and debts of said corporation, to the extent of the amount of their stock therein, at the par value thereof, respectively, at the time the debt was created, in addition to the amount invested in such shares.” The above-quoted provision of the statute was involved in Chatham Bank v. Brobston, 99 Ga. 801 (2) (27 S. E. 790), which was a suit to recover the statutory liability of stockholders imposed by the charter of the Brunswick State Bank. It appears from the record of file in this court that several of the defendants whom the books of the bank showed to be stockholders were shown to hold the shares of stock only as collateral security, and that tire trial judge held that the defendants were liable as holders of the stock, notwithstanding they held it only as collateral security. On review in this court it was held: “Where the charter of a bank imposes on all of its stockholders
The evidence showed that all of the unpaid depositors in the Bank of Donalsonville, for whose benefit the superintendent of banks was suing to recover the stockholders’ statutory liability at a time when the bank was temporarily suspended, and in order that it might not be put in liquidation, entered into written agreements with the bank whereby each accepted time certificates for the amount of money each had on deposit, the form of the certificates being as follows:
“Bank of Donalsonville. No. 2699.
“Donalsonville, Ga., ...........19...........$............
“This certifies that.......has deposited in this Bank... .Dollars. Payable to the order of......in current funds on the return of this certificate properly endorsed......months after date with interest at the rate of......per cent, per annum- No interest after maturity. ........................Cashier.”
It was contended by the plaintiff that this change in the char
The court excluded testimony of the witness VanLandingham to the effect that the Bank of Donalsonville was insolvent, on the ground that the testimony was a mere conclusion of the witness. The evidence was offered in connection with other testimony of the witness to the effect that he was cashier of the bank, and other testimony of the witness stating facts upon which the proposed statement was based. It is provided in the Civil Code (1910), § 5874: “Where the question under examination, and to be decided by the jury, is one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue is as to the existence of a fact, the opinions of witnesses, generally, are inadmissible.” It was held in Crawford v. Andrews, 6 Ga. 244 (2) : “The opinion of a witness may be given in evidence as to the insolvency of a party, provided it is accompanied by the facts upon which the opinion is founded.” See also Kirkman v. Ashford, 145 Ga. 452 (5) (89 S. E. 411). It was erroneous to exclude the testimony from evidence.
Judgment reversed on the main MU of exceptions, and affirmed on the cross-bill.