26 F.2d 28 | 8th Cir. | 1928
The receiver of the Eirst National Bank of Devol, as plaintiff in the court below, for whom Gamble, a subsequent receiver, was later substituted, brought this action against the plaintiffs in error, there defendants, to recover the statutory assessment upon stock alleged to have been owned by them in said bank at the time it became defunct. The defendants first demurred, and, upon such demurrers being overruled, filed their separate answers, which in turn were followed by replies, and upon the issues thus joined the cause was tried to the court without the intervention of a jury upon written stipulation of the parties.
In brief, the following situation was disclosed by the evidence: Some time in 1924, owing to the bank being in a depressed condition as to its finances, an assessment amounting to $25,000 was made among its stockholders to which a certain portion of such stockholders did not respond; such uncollected assessments amounting to $9,400. Upon demand of the office of the Comptroller of the Currency through the regular channels it was required of the officials of the bank that this sum should be placed in the bank or the institution would not be allowed to open its doors. The defendants, stockholders and also directors of the bank, raised this sum among themselves and deposited it in the bank in escrow in order to satisfy the requirements of the National Banking Department. An attempt was then made by the bank to close out the stock which was in default on account of the unpaid assessments, and upon the first attempt no sale resulted. Appeal for advice was then made to the Comptroller, who advised the cashier of the bank by letter, in substance, that the defaulted stock must be sold out, and suggested that said stock be noticed for sale by advertisements in a local paper for 30 days, and, in the event no other bids were received, the amount held in escrow in the bank which was put up by the directors to cover the unpaid delinquency in the assessment might be applied to the purchase of such stock, a trustee appointed to represent the purchasers, the stock reissued upon the books in the name of such trustee, the old stock thereupon canceled and notice given to the old shareholders of such cancellation. After consulting with the director’s, defendants here, this plan of procedure was agreed upon and followed. The sale was conducted upon published notice at which, no other bidders being present, the stock was bid in by the cashier for the stockholders who had previously advanced the money and the stock reissued in the name of the cashier as trustee. The correspondence shows that this plan was merely a suggestion on the part of the Comptroller and in no way obligatory upon the directors. Some months later the bank failed. It was taken in charge by the Comptroller, and a receiver appointed, who thereupon proceeded to liquidate it. A demand was made upon the defendants as owners of the $9,400 worth of par value stock acquired in the manner hereinbefore outlined for the statutory assessment of 100 per cent, par value, which demand was refused, and this suit instituted for its collection.
Three points only are raised which seem to require the attention of this court; the cause having been submitted upon briefs without oral argument:
Eirst, error of the trial court is alleged in the overruling of the separate demurrers. Without outlining in detail the averments of the petition, we are of the opinion that the petition is amply sufficient to present the issues upon which the plaintiff claimed the right of recovery.
Second, as to the evidence of the witness Donahue concerning the purported action of the defendant English in selling out his stock before the bank closed, it may be said that this evidence was immaterial. Yet in a trial to the court without a jury it cannot be said to be prejudicial, and it may be disregarded in assembling and considering the competent evidence which goes to sustain the allegations of the petition. There was therefore no reversible error on the part of the court in admitting this testimony.
Third, the judgment of the trial court is assailed upon the ground that the evidence is insufficient to sustain said judgment, which point is presented under several different assignments of error. Under the well-recognized rule that, when a case is tried to the court, a jury being waived, if there is any substantial evidence to sustain a judgment upon the questions of fact, that judgment will not be disturbed, we come to the conclusion that the evidence is not only sufficient, but preponderates strongly in favor of the receiver. The proper solution of the contro
Finding no errors in the record justifying the reversal, the judgment of the trial court will be affirmed.