83 Pa. Super. 79 | Pa. Super. Ct. | 1924
Argued March 3, 1924.
The Act of April 22, 1874, P.L. 109, which prescribes the practice in trials of civil cases at law by a court *81
without a jury, makes no provision for the entry of a nonsuit. The method enjoined by the act is mandatory: Sweigard v. Wilson,
The action was brought in 1918 by Grenville Clark as receiver of the Audubon National Bank of New York against Charles P. Davidson, a stockholder of said bank, to recover two dividends paid him some six years previously in the distribution of the assets of the bank under voluntary liquidation proceedings taken in accordance with the National Banking Act. In December, 1915, one Ballard, receiver of the Keystone Guard, secured a judgment in New York against the bank growing out, as it is alleged, of some fraudulent conversion of its securities by the president of the bank, and subsequently *82 in a suit in equity brought by said Ballard as receiver, aforesaid, in the District Court of the United States for the Southern District of New York, this plaintiff was appointed receiver of the Audubon National Bank and authorized to institute suits to recover its assets; and in said decree he was further "authorized and empowered, in his discretion, to institute and prosecute suits to enforce the stockholders' liability of the stockholders of the Audubon National Bank of New York, and to compel restitution by such stockholders of any dividends that may have been paid out and received by them during the course of liquidation." No copy of the record of the suit in the United States District Court on which the plaintiff's alleged authority to bring this action is based was attached to and made a part of the plaintiff's statement, nor was it produced and offered on the trial of the case. The plaintiff's entire proof consisted in offering such averments of the plaintiff's statement as were not denied in the affidavit of defense. These amounted to nothing more than an admission of the receipt of the two dividends above mentioned which, it was averred, had been paid and received in good faith under the liquidation proceedings aforesaid, after all moneys due depositors had been paid with interest and all known debts had been paid. The affidavit of defense averred that at the time said dividends were declared and paid in liquidation the said bank was solvent. It did not deny that a decree had been entered in the United States District Court as alleged in the statement but called special attention to the failure of the plaintiff to attach to his statement of claim, as a material part thereof, a copy of the record of said suit in the district court, under which he was appointed and authorized to institute the suit for the recovery of said dividends, or of the record in the action wherein judgment was obtained against the bank.
We are of opinion that the lower court was right in holding that the present action was based on the decree *83
of the United States District Court above and there could be no recovery against the defendant unless the record of that suit was pleaded and put in evidence: Campbell v. Ry. Co.,
Except as based on the decree of the United States District Court, we are not satisfied that an action at law was the proper remedy. The method of enforcing the individual liability of a stockholder of a national bank (Revised Statutes, section 5151) in the event of its voluntary liquidation, such as was made a part of the decree in the United States District Court above referred to, is declared in the Act of Congress of June 30, 1876, c. 156, section 2, 19 Stat. 63, Barnes Fed. Code, section 9258, to be by bill in equity instituted in a court of equity for the district where such bank was located; and it has been held that the remedy thus provided is exclusive, with such ancillary proceedings as may be necessary with respect to nonresident stockholders: Williamson v. American Bank, 115 Fed. 793 (C.C.A. 4th Circuit). While the present action is not to recover upon the individual liability imposed by section 5151 aforesaid, the right which the plaintiff seeks to enforce is an equitable right and, in the absence of authority *84
given by statute, will not support a purely legal action: Lawrence v. Greenup, 97 Fed. 906 (C.C.A. 6th Circuit). "The lien of creditors of an insolvent corporation upon its assets in the hands of others, (independently of rights given by statute) is a purely equitable lien and can only be enforced in an equitable proceeding": McLean v. Eastman, 21 Hun. 312, 314. "It is rather a trust in the administration of the assets after possession by a court of equity than a trust attaching to the property, as such, for the direct benefit of either creditor or stockholder": Hollins v. Brierfield Coal Iron Co.,
Furthermore, there was no averment in the plaintiff's statement that the indebtedness upon which the receiver of the Keystone Guard obtained judgment against the bank in December, 1915, was incurred prior to the distribution of the dividends in the liquidation proceedings. If it was not, the defendant could not be called upon to return the dividends thus received by him: Lawrence v. Greenup, supra; McDonald v. Williams,
Under the pleadings and facts in evidence no different result than a judgment for the defendant could properly have been reached (Hunter v. Johns,
The first and second assignments of error are overruled. The third and fourth, in this view of the case, are immaterial. The judgment is affirmed.