155 Ga. 151 | Ga. | 1923
Lead Opinion
S. H. Bullock as receiver of the State Bank of Kissimmee, Florida, a bank chartered under the laws of Florida, filed a petition in Chatham superior court against E. J. Oliver, to recover an assessment levied on twenty-three shares of the capital stock of said bank owned by Oliver. This-assessment was made under a statute of the State of Florida, the material portions of which will be referred to later. The defendant filed a demurrer to the petition, which was overruled by the court. To this judgment the defendant excepted and took the case to the Court of Appeals. That court reversed the judgment overruling the demurrer. Oliver v. Bullock, 28 Ga. App. 446 (111 S. E. 680). The case is now in this court on writ of certiorari, brought to review the judgment of the Court of Appeals.
The statute of Florida provided that “ Stockholders of every banking company shall be held individually responsible equally and ratably, and not for one another, for all contracts, debts, and engagements of such company, to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.” Florida Bevised General Statutes, § 4128. The suit in this case was brought to recover an assessment made upon Oliver under the liability created by this statute. The statute under which this receiver was appointed is as follows: “ On becoming satisfied, from the reports furnished to him by a State Bank Examiner, or upon other satisfactory evidence thereof, that any bank, banker, banking firm, banking or trust company or corporation, doing business in this State under the State laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm, banking or trust company or corporation doing business in this State under such State laws, is in an unsound condition or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without
The question for decision is whether the Florida'receiver could sue to recover, in a court of this State, the assessment so made upon the stockholder in the Florida bank. It is well-settled law that a chancery receiver has no extraterritorial jurisdiction or power of official action, and can not, as a matter of right, go into a foreign State or jurisdiction and there institute a suit for the recovery of demands due the person or corporation whose estate
But where the rights and powers of a chancery receiver are not derived solely from his appointment by the court of another State, and where he is invested by statute with the right of a quasi-assignee or representative of creditors, he can sue upon claims and demands due the insolvent persons whose estate he is administering, not strictly by virtue of his appointment, but by reason of his title and the power conferred upon him by such statute. When the statute expressly confers upon the receiver title, the chancery receiver can sue in the courts of the jurisdiction in which he is appointed and also in the courts of foreign jurisdictions. No one questions this doctrine. 23 B. C. L. 141, § 150. This principle likewise applies where by necessary implication a chancery or statutory. receiver is vested by statute with title, or is made the representative of creditors; he being considered, under such circumstances, substantially an assignee. Hnder the national-bank act (13 Stat. 114, § 50, U. S. Comp. St. § 9821), the comptroller of the currency was authorized, when any association refused to pay its circulating notes, to forthwith appoint a receiver who should “take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to such association, and, upon the order of a court of competent juridiction, .may sell or compound all bad or doubtful debts, and, on a like order, sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stock
In Bernheimer v. Converse, 206 U. S. 516 (27 Sup. Ct. 755, 51 L. ed. 1163), the Supreme Court of the United States held that “while a chancery receiver, having no authority other than that arising from his appointment, may not maintain an action in another jurisdiction, a receiver may sue in a foreign jurisdiction to collect statutory liability of stockholders,' where the statute confers the right upon the receiver as quasi-assignee.” The court draws the proper distinction between the above ruling and the ruling in Booth v. Clark, supra, and similar cases, in this language: “It is objected that the receiver cannot bring this action, and Booth v. Clark, 17 How. 322, Hale v. Allinson, 188 U. S. 56, and Great Western Mining Co. v. Harris, 198 U. S. 561, are cited and relied upon. But in each and all of these cases it was held that a chancery receiver, having no other authority than that which would arise from his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi-assignee and representative of the creditors, and as such vested with the authority to maintain an action. In such case we think the receiver may sue in a foreign jurisdiction.” In
Judgment reversed,.
Dissenting Opinion
dissenting. S. H. Bullock as receiver of the State Bank of Kissimmee, Florida, filed with the Supreme Court a petition for certiorari to the Court of Appeals, to review and correct alleged errors committed by the Court of Appeals in reversing the judgment in favor of the plaintiff in the superior court of Chatham County, Georgia. The plaintiff in his petition alleged, in substance, the following: As receiver of the State Bank of Kissimmee, incorporated under the laws of Florida, he filed his petition in the superior court of Chatham County, Georgia, against Edgar J. Oliver, praying judgment against the latter for the sum of $2300, which was an assessment upon 23 shares of the capital stock in the Bank of Kissimmee, owned by Oliver, and which assessment was made under and pursuant to a statute of the State of Florida, the material portions of which will be set -out later. The defendant filed a demurrer to the petition, which was overruled by the court, and the defendant excepted and took the case to the Court of Appeals by writ of error. On April 11, 1922, the Court of Appeals rendered a decision reversing the judgment of the superior court of Chatham County in overruling the defendant’s demurrer; and on April 20, 1922, the plaintiff filed notice of his intention to apply for a writ of certiorari. It appears that the State Bank of Kissimmee became insolvent, and a receiver was appointed' under the statute of Florida, to wind up its affairs. The receiver levied an assessment upon Oliver for the amount of his stock in the
“ 1. A chancery receiver has no extraterritorial jurisdiction or power of action, and, therefore, can not bring suit in a foreign State or jurisdiction. Nor can a statutory receiver institute suit in a foreign State, unless the statute under which he is appointed vests in him title to the property of the insolvent corporation which he represents.
“ (a) The principles of comity between States do not apply to such a case.
“ 2. Under the foreging rulings and the facts of the instant case, the plaintiff’s petition failed to set forth a cause of action, and the court erred in not dismissing it on general demurrer.”
It is insisted by the plaintiff in certiorari, first, that the Court of Appeals erred in holding that the receiver appointed under the laws of the State of Florida could not maintain an action in a court outside of the jurisdiction of his appointment, to enforce his rights as such receiver; and second, that the Court of Appeals erred in deciding that the principles of comity between States did not apply to the instant, ease. It is argued that the receiver in the instant case is not a chancery receiver, but is a receiver appointed under and by virtue of a statute of the State of Florida. So much of the statute of the State of Florida as is material to an understanding of the present ease is here set out: “ On' becoming satisfied from the reports furnished to him by a State Bank Examiner, or upon other satisfactory evidence thereof, that any bank, banker, banking firm, banking or trust-company or corporation, doing business in this State under the State laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm, banking or trust company or corporation, doing business in this State under such State laws, is in an unsound condition, or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without authority of law or in violation of law, or if the directors of any bank, banking or trust company or corporation, or any banker, or the manage
The question for decision in this case is whether the receiver appointed by the State Comptroller of Florida, and confirmed by the circuit court of Florida, is authorized to bring suit in the superior court of Chatham County, Georgia, for the recovery of the amount which, had been assessed against the stockholder, E. J. Oliver, by the State Comptroller of Florida. It seems to be well-settled doctrine'in Federal jurisprudence that a mere chancery receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated; and that the functions and authority of such receiver are confined to the jurisdiction in which he was appointed. Sterrett v. Second National Bank, 248 U. S. 73 (39 Sup. Ct. 27, 63 L. ed. 135). Mr. Justice Day, of-the Supreme Court of the United States, in rendering the decision in that case, said: “ The reasons for this rule were fully discussed in Booth v. Clark, 17 How. 322, and have been reiterated in later decisions of this court. Hale v. Allinson, 188 U. S. 56; Great Western Mining Co. v. Harris, 198 U. S. 561, 575, 577; Keatley v. Furey, 226 U. S. 399, 403. This practice has become general in the courts of the United States, and is a system well understood and followed. It permits an application for an ancillary receivership in a foreign jurisdiction
The rule itself, in cases like the present, seems to be well settled; but the trouble arises from the application of the rule to the facts of a given case. The rule is well stated in 23 B. C. L. 141, § 150, as follows: “It is well settled that a receiver, in the absence of a statutory provision vesting him with rights as quasi assignee or representative of creditors, has no power as of right to sue in the courts of a jurisdiction foreign to that of his appointment, because he is considered merely as an officer of the court which appoints him. Where, however, the rights of such an officer do not rest merely upon his appointment by the court of another State, but there has been an assignment to him, in his official capacity, of the property in question, or by virtue of the statute of such State the title to the property is vested in him, he may, it seems, sue and recover the same, not strictly by virtue of his appointment, but by reason of his title, he being considered, for that purpose, substantially an assignee. The dis
The question therefore arises, whether under the foregoing rules there has been such an assignment to the receiver, in his official capacity, of the property in question, or by virtue of the operation of the statute of Florida the title to the same is so vested in him as that he may sue and recover in another jurisdiction, not by virtue of his appointment as receiver in his own jurisdiction, but by reason of his title, so that he can be considered as substantially an assignee or a quasi-assignee. I have carefully examined the statute of Florida, quoted above, and I find nothing in it, in the light of the decisions of the Supreme Court of the United States or the weight of authority in other jurisdictions, which would warrant the conclusion that title was and is vested in the receiver as assignee, or as statutory successor of the insolvent corporation, in order that he could bring suit as such in a foreign jurisdiction. The statute of Florida, after providing when and under what circumstances a bank has be
Our Civil Code (1910), § 9, provides that “The laws of other States and foreign nations shall have no force and effect of themselves within this State, further than is provided by the constitution of the United States, and is recognized by the comity of States. The courts shall enforce this comity, until restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this State.” The above section of the code is cited by the plaintiff in certiorari in support of his contention that the courts shall observe' the principle of comity, “ so long as its enforcment is not con
In Great Western Mining &c. Co. v. Harris, 198 U. S. 561 (25 Sup. Ct. 770, 49 L. ed. 1163), it was held: “A receiver is an officer of the court which appoints him; and in the absence of some conveyance or statute vesting the property of the debtor in him, he cannot sue in courts of a foreign jurisdiction, upon the order of the court appointing him, to recover the property of the debtor. Booth v. Clark, 17 How. 338. A receiver’s right to sue in a foreign jurisdiction is not recognized upon principles of comity, as every jurisdiction in which it is sought by means of a receiver to subject property to the control of the court has the right and power to determine for itself who the receiver shall be, and to control the distribution of the funds realized within its own jurisdiction.” In delivering the opinion of the court in that case Mr. Justice Day said: “ The particulars of the suit in which the receiver was appointed are not very fully set forth, but enough appears to show that he was appointed in a' suit to adjudicate and enforce liens and subject the property to the payment of the claims of creditors. In the brief of the learned counsel for complainant it is styled a ‘ general creditors ’ and foreclosure suit.” It does not appear that by the order of the court or otherwise there has been any conveyance of the property and assets of the company to the receiver [italics ours], nor has the corporation been dissolved, and the receiver made its successor, entitled to its property and assets. The minute books of the company in evidence do not show any authority by the corporation fqr the filing of this bill in the name of the Great Western Mining and Manufacturing Company or otherwise, although meetings were held after the appointment of the receiver.
There are cases, such as Relfe v. Rundle, 103 U. S. 222 (26 L. ed. 337), in which it was held that all of the property of the insolvent corporation was vested in the superintendent of insurance of the State, and his right to sue was upheld. In such cases his right to sue is not derived from the decree of the court, but because the title to the property is in the person suing. But such is not the case before us, where neither the court authorizes suit, nor renders judgment which may be given full faith and credit in this jurisdiction, as in Converse v. Hamilton, 224 U. S. 243, 257 (supra); nor the statute places the title in the receiver, nor contains such language as would constitute the receiver a quasi-assignee. See 1 Tardy’s Smith on Beeeivers (2d ed.), 905, § 352. It is stated in Great Western etc. v. Harris, supra, that because of the doctrine declared in Booth v. Clark “the practice has become general in the courts of the Hnited States, where the property of a corporation is situated in more than one jurisdiction, to appoint ancillary receivers in such separate jurisdictions,” etc. It is further said that “ It is true
From a consideration of various authorities bearing upon the subject under consideration, and the statutes of Florida, 1 am of the opinion that the receiver in the present-case had no authority either by order of any court of the State of Florida, the statutes of that State, or by the rule of comity between the States, or by giving full faith and credit to any judgment of the courts or statutes of Florida under the Federal constitution, to bring the present suit in the superior court of Chatham County Georgia.
The cases of Bank v. Kennedy, 84 U. S. 19 (21 L. ed. 554), and Converse v. Hamilton, supra, relied on by the majority of the court, are distinguishable from the present case. In the latter case it was said, among other things: “ By the proceedings in the sequestration suit, had conformably to the laws of Minnesota, he [the receiver] became a quasi-assignee and representative of the creditors, was invested with their rights of action against the stockholders, and was charged with the enforcement of those rights in the courts of that State and elsewhere.” It will be observed that there was no sequestration or other suit in the courts of Florida, as in the Converse case; nor do I think that the statute of Florida, standing alone, makes the receiver a quasi-assignee so as to authorize him to bring suit in the' State of Georgia.
I reach the conclusion, from what has been said above, and from the authorities cited, that the judgment of the Court of Appeals is correct and should be affirmed. I am authorized by Mr. Chief Justice Bussell to say that he concurs in this dissenting opinion.
