79 F. 189 | 9th Cir. | 1897
This was a suit in equity, to the bill of complaint in which the court below sustained a demurrer, interposed by the defendant, and, the complainant declining to amend, the court dismissed the bill. The appeal brings np the question of the sufficiency of the bill. The court below held that it did “not state facts sufficient to entitle complainant to relief in equity, and that complainant had an adequate remedy, if any at all, at law.” Passing the allegations of the bill in respect to the citizenship of the respective parties,, and in respect to the insolvency of the Merchants’ National Bank of Seattle, and the appointment and qualification of the defendant, Baker, as receiver of that bank, it alleges that in the month of July, 1893, the bank was pressed for money with which to meet the demands of its creditors, and found itself under the necessity of ob
“Whenever a receiver [of a national hank] is appointed, the comptroller is required to give notice of the fact, requesting all persons having claims against the association to present the same, and to make legal proof thereof. Provision is first to be made by the comptroller for refunding to the United States any such deficiency in redeeming the notes of the association as is mentioned in the act, and, having refunded that amount, the comptroller is required, in the next place, to make a ratable dividend of the money paid over to him by the receiver on all such claims as may have been proved to his satisfaction, or adjudicated in a court of competent jurisdiction. Claims proved to the satisfaction of the comptroller are to be included in the list, and he is also to include in the list all claims adjudicated in a court of competent jurisdiction, which shows conclusively that 'claims disallowed by the comptroller may be prosecuted in a court having jurisdiction in such eases.”
In that case the supreme court also held that, notwithstanding the insolvency of a national bank, and the appointment by the comptroller of a receiver of its assets, the corporate franchise of the association continues, and the association, as a legal entity, continues to exist, and is capable of suing and liable to be sued in all matters in which the corporation is interested. It is not denied that the state court of King county, Wash., where the corporation was located, and where the contract relied on by the complainant was made, was a court of competent jurisdiction for the adjudication of the rights of the parties to the contract which forms the basis of the complainant’s suit, had there been no insolvency proceedings. It follows that it was a court of competent jurisdiction for the adjudication of the complainant’s claim, the bank having become insolvent, and the receiver of its assets having rejected the claim. Undoubtedly, the receiver would have been entitled to have defended that suit in the name of the bank or in his own, and would have been permitted by the court, upon a seasonable application, to have contested the validity of that judgment.
In Bank v. Colby, 21 Wall. 609, one of the questions was whether the property of a national bank organized under the act of congress of June 3, 1864, attached at the suit of an individual creditor, after the bank has become insolvent, can be subjected to sale for the payment of his demand against the claim for the property by a receiver of the bank subsequently appointed; and the court said, among other things:
“It is too late for counsel to question in this court the right of the receiver to appear in the state court, and move the discharge of the attachment and the abatement of the suit, or to contest the case at the trial. Whatever informality may have existed in the proceeding, it was waived by the silence of the parties. Objections in matters of form to modes of procedure in the court below cannot be urged here for the first time. But, independently of this consideration, we are of opinion that it was a proper proceeding on the part of the receiver to apply to the court below to discharge the attachment on proof of the facts presented by him, and the production of his appointment, and the decree dissolving- the association. Invested with the rights of the bank to the possession of the property by his appointment, it was his duty to take the necessary steps to remove the levy.”
In Bank v. Kennedy, 17 Wall. 19, it was held that the receiver may sue in his own name or in that of the bank; and, if he may so sue,
“From timo to time, after full provision lias been first made for refunding to die United States any deficiency in redeeming- tlie notes of such association, the eompiroller shall make a ratable dividend of the money so paid over to Min by stieli receiver on all such claims as may have boon proved to his satisfaction or adjudicated in a court of competent jurisdiction.” Rev. St. § 5236.
Umita- this language the supreme court, in the case of National Bank of Bahquioque v. Bank of Bethel, supra, sustained a, suit against the insolvent bank, to which the receiver did not appear as a party; and in National Bank of the Commonwealth v. Mechanics’ National Bank, 91 U. S. 437, 440, it was expressly held that claims against an insolvent bank, whose validity is established, by a judgment in a court of competent jurisdiction, and claims that are proved to the satisfaction of the comptroller, stand upon the same fooling. In that case a suit against the insolvent bank for interest accruing after the allowance of the principal sum by the receiver was sustained, although the receiver was not a party thereto. In the cases of Turner v. Bank, 26 Iowa, 562, and Green v. Bank, 7 Hun, 63, cited and relied on by the appellee, it was held that tiie receiver was a proper party to a suit brought in a court of competent jurisdiction to establish a claim against the insolvent bank; but in neither of those cases was it held that he is a necessary party to such a suit. Case v. Bank, 100 U. S. 446, was an action by the Citizens’ Bank of Louisiana against the receiver of the Crescent City National Bank to recover damages for a refusal on the part of the latter bank, prior to its insolvency, to permit a transfer of certain shares of its capital stock. The proof showing, and the jury having found, that the Citizens’ Bank was damaged by that refusal on the part of the insolvent bank iu a certain sum of money, the supreme court sustained the action against the receiver of the insolvent bank, and affirmed the judgment of the lower court, directing the receiver to recognize the Citizens’ Bank as a creditor for the amount in which it had been damaged, and requiring Mm to provide for its payment along with the other creditors of the insolvent bank.
The validity of the complainant’s claim being thus established against the bank, and the receiver continuing to reject it, the claimant is clearly entitled to some remedy to enforce his right. That he cannot resort to mandamus is conceded by the appellee. The United States courts have no jurisdiction in mandamus except where the right sought is ancillary to their other powers, or to enforce their own judgments. McIntire v. Wood, 7 Cranch, 504; Bath Co. v. Amy, 13 Wall. 244; Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633; Gares v. Association, 55 Fed. 209. But there is no difficulty in the way of the complainant maintaining an action at law against the receiver upon the judgment recovered by him in the state court. Hickman v. Macon Co., 42 Fed. 759; Freem. Judgm. § 432; 2 Black, Judgm. § 958, and cases there cited. The judgment in such action at law may direct the receiver to recognize the claim of the complainant, and to provide for its payment along with all other claims against the insolvent bank. Case v. Bank, 100 U. S. supra. This affords complainant a plain, speedy, and adequate remedy, and therefore he cannot resort to equity. The judgment is affirmed.