176 P. 236 | Okla. | 1918
The Farmers' National Bank commenced an action against John E. Johnston upon a postdated check drawn on the Sallisaw Bank Trust Company in favor of Edwards Co., and by them indorsed to the Farmers' State Bank, which latter institution was converted into the Farmers' National Bank. When the check was presented, payment was refused and the check protested.
The answer of defendant contained a specific denial of the corporate existence of plaintiff, which was duly verified. At the trial, plaintiff proved by oral testimony the existence of plaintiff as a national bank and the conduct of a general banking business by it, and also offered evidence as to the ownership of the check sued upon. At the close of the evidence, verdict was instructed for defendant. This was error. It was proper to prove the corporate existence of *173
plaintiff by parol evidence. Section 5112, Rev. L. 1910, makes exemplifications of the books of any department of the government of the United States, or any papers filed therein, admissible in evidence in the same manner and with like effect as the originals, when attested by the officer having custody of such originals, and 3 Federal Stat. Ann. P. 27 (U.S. Comp. St. 1916, § 1497), declares that copy of the incorporation certificate of any national banking association duly certified by the Comptroller of the Currency and authenticated by his seal of office shall be sufficient evidence, in all courts and places within the jurisdiction of the United States, of the existence of the association. It is contended that this statute makes the character of proof therein declared to be prima facie proof of the existence of such corporation the exclusive method by Which such fact may be established. The statute does not so declare, nor has it been generally so held by the courts. In a direct action by the state for the purpose of determining the right of an alleged corporation to transact business, strict proof of due incorporation is required. Zane on Banks
Banking, § 23. But where the existence is called in question collaterally, that rule does not apply. Higbee v. Aetna Bldg.
Loan Ass'n,
It appeared that after suit was commenced the Farmers National Bank was placed in process of voluntary liquidation, and at the time of the trial its affairs had not been finally wound up. This did not affect its right to maintain the action. A national bank, even though in the process of liquidation, may sue and be sued in its own name until its affairs are settled. Oklahoma City National Bank v. Ezzard,
The judgment is therefore reversed, and the cause remanded for a new trial.