157 Ga. 888 | Ga. | 1924
The petition of Bennett, superintendent of banks, alleges a general indebtedness of C. H. Cates to the Peoples Bank
Being a suit of that character, it must be held that the amount sought to be recovered from the defendant C. EL Cates, a resident of the State of Florida, exceeded $3000, and also that the property which petitioner seeks to have subjected to the payment of the debt exceeds the value of $3000, exclusive of interest and costs; and consequently the district court of the United States would have jurisdiction of the case. U. S. Comp. Stat. 1916, vol. 1, § 991, Par. 1 Judicial Code, section 24. The suit being by a resident of Georgia against citizens of Georgia and also citizens of Florida,
It is insisted, however, by the defendant in error that the suit is proceeding solely for the purpose of collecting two hundred dollars assessed against C. H. Cates, the owner of two shares of stock in the insolvent Peoples Bank of Gordon, and that all other allegations in the petition are merely in aid of that purpose, the superintendent of banks having issued execution against Cates. The merits of the claim made in the suit are not now in issue. The able trial judge construed the petition in accordance with this contention. Paragraph 12 of the petition reads as follows: “That the said C. H. Cates was a stockholder in said Peoples Bank of Gordon in the amount of two hundred dollars ($200.00), and it became necessary for your petitioner to assess him as such stockholder one hundred per cent, on his stockholdings in said bank, but said assessment was not paid; and thereupon on the 3rd day of December, 1921, your petitioner as superintendent of banks for the State of Georgia, did issue an execution against the said C. H. Cates on his said stock liability to said bank, which said execution has been levied upon the above-described real estate.” We construe the petition as a suit to collect the entire indebtedness alleged to be due by Cates, the several items amounting to a total of $10,200, besides interest. According to this construction which we have placed upon the petition, the cause should have been removed on petition. In view of the facts stated, it is ordered that the judgment of the court refusing to remove the cause be affirmed, provided the petitioner, on the filing of the remittitur of this court in the superior court of Wilkinson County, or within thirty days thereafter, amend the petition to the effect that recovery is prayed for only the two hundred dollars assessed against C. H. Cates as a stockholder in the bank, and not for the recovery of the other item mentioned in the petition. If such amendment is filed as herein provided, the judgment of the court shall stand affirmed; otherwise the judgment shall be reversed.
Judgment affirmed, on condition.