170 Ga. 65 | Ga. | 1930
The Peoples Bank of Calhoun, Georgia* closed its doors on February 10, 1926, and its assets were placed in the hands of the State superintendent of banks for liquidation. A stock assessment was issued May 17, 1926, against C. B. Dyar for the sum of $500, and a levy was made on November 10, 1926, upon a certain lot of land in the town of Calhoun, upon which there was a storehouse. Dyar filed a petition praying for injunction against the sheriff, the superintendent of banks, and the liquidating agent. Upon the call of the case for trial the petitioner offered an amendment to his original petition, which was in substance as follows: The five shares of stock in the Peoples Bank, which is the basis of the execution issued, was purchased by petitioner from the bank on April 26, 1919, through B. W. Blackmon, its agent and cashier. At the time he purchased this stock he gave the bank his promissory note for $575 in payment for the stock. At that'time he knew nothing about the affairs or condition of the bank, but was advised by Blackmon that the value of the stock was $145 per share. In purchasing the stock petitioner relied solely upon the statements and representations of Blackmon. Petitioner alleges on information and belief that the stock at the time he purchased it was worth
To what is set forth above should be added other allegations in the petition, in substance as follows: The property levied upon under the execution is of the value of $8,000, and therefore the levy is excessive. Petitioner had personal property and other property of smaller value, and “it was not necessary for the sheriff to levy upon the realty belonging to the defendant in execution.” The property levied upon “will not bring a fair market value,” on account of certain local financial conditions described; it being alleged that seven other storehouses on the same street upon which is located petitioner’s lot are at this time on the riiarket; and besides, “the financial condition in the whole surrounding county, as well as in the city of Calhoun, is much depressed” on account of the failure of this bank and the closing of the doors of three other banks in the immediate section of the citjr of Calhoun. The prayers are for injunction, general relief, etc.
The court did not err in sustaining the general demurrer. The matters alleged in the petition, which are of such a nature that they might be urged against the enforcement of the execu
But it is further alleged, in a second amendment to the petition, that “there was no legal assessment made as a basis for the execution, . . in that said execution was made and issued under an assessment made by the assistant superintendent of banks, when the latter had no authority to make such assessments; the superintendent of banks was the only person authorized to make such assessments.” Of course the demurrer to the petition admits the allegation that the assessment upon which the execution was based was made by the assistant superiixtendent of baxxks. We do not now decide whether the assistant superintendent of banks was vested with the right and authority to make the assessment ;■ or whether, if it was made by the assistant superintendent, a valid execution could lie issued thereon. But we do hold that if the assessment
The rulings in lieadnotes 2, 3, and 4 require no elaboration.
Judgment affirmed.