40 A.2d 853 | Pa. | 1944
Lead Opinion
The Secretary of Banking took possession of Pittsburgh-American Bank and Trust Company on September 25, 1931. On November 18, 1931, he determined, as Receiver, to liquidate its business and property. On February 1, 1939, he decided to enforce the additional statutory liability of the stockholders for the debts of the bank and gave written notice of assessment and demand for payment on or before March 6, 1939. On October 1, 1941, he brought this suit in assumpsit against one of the stockholders who had failed to pay the assessment. The action was defended on the ground that the period from September 25, 1931, the date of the closing of the bank, to March 15, 1933, the date of the filing of the Receiver's first and partial account, constituted a sufficient time within which he should have made his assessment and demand and that therefore the Statute of Limitations began to run more than six years before the commencement of this action. Defendant set forth as "new matter" the various appraisements of assets and statements of liabilities filed from time to time, all of which showed such an excess of liabilities over appraised value of assets that, it is alleged, it should have been clear to the Receiver almost from the beginning that enforcement of the additional statutory liability of the stockholders would be necessary.
The court sustained plaintiff's motion to strike off the "new matter" and made absolute plaintiff's rule for judgment for want of a sufficient affidavit of defense.
In actions brought to enforce the liability of stockholders for debts of the corporation the question has frequently arisen as to the operation of the Statute of Limitations. When the suit was to recover the unpaid balances of stock subscriptions, it was originally determined, *268
in a number of decisions by this court, that the Statute ran immediately from the date when the insolvency of the corporation appeared either by adjudication in bankruptcy, the making of an assignment for the benefit of creditors, or the appointment of a receiver, but, when the suit was to enforce the additional statutory liability of the stockholders, the Statute ran only from the time when it was determined to what extent such liability would have to be enforced and an assessment or demand was actually made. However, in Bell v.Brady,
In Bell v. Cabalik,
In Bell v. Brady,
In the present case we are asked to extend the application of this principle to suits at law to enforce the statutory liability of the stockholders. We are of opinion, however, that it is a principle applicable only where the liability is contractual and that it has no place where the liability is one created by law and enforceable as a statutory obligation by the Secretary of Banking. Although we held in Harr, Secretary ofBanking, v. Mikalarias,
For the reasons stated, we are of opinion that the court below properly struck off the "new matter" and entered judgment against defendant for want of a sufficient affidavit of defense.
Judgment affirmed.
Concurrence Opinion
I concur in the result reached in the court's opinion filed in the above entitled case.
In Bell, Secretary of Banking, v. Cabalik,
This court has a right to consider any question raised by the pleadings, whether it is mentioned in the statement of questions involved or not. In the Cabalik case we declared that a negative answer must be given to the question: "Is the claim of the Secretary of Banking barred by the statute of limitations where suit is brought promptly following the making of the assessment but the assessment was not made until more than six years after the Secretary entered into possession of the bank and determined to liquidate its affairs?"
In Bell, Secretary of Banking, v. Brady,
The statements in the excerpts just quoted are mere dicta, are erroneous and are contrary to our former decisions. The cases cited in support of the dicta are wholly inapplicable in a suit by a Secretary of Banking against stockholders of closed banks. "The rule that where a plaintiff's cause of action depends upon some act to be performed by him preliminary to commencing suit, and he is under no restraint or disability in the performance of such act, he cannot indefinitely suspend the running of the statute of limitations by delaying the performance of the preliminary act" has no application to a case of this kind where the liability and procedure are determined by statute. The section of the Banking Code applicable to this and similar cases is Sec. 723 of Art. VII of the Act of May 15, 1933, P. L. 565 (71 P. S., Sec. 733-723), which provides as follows: "If at any time after he takes possession of a corporation as receiver, it shall appear to thesecretary that the assets of such corporation will be insufficient to pay in full its debts to depositors and other creditors, he shall, as soon as expedient, estimate the amount which shall be assessed against all shareholders who are, under these circumstances, personally liable for any part of the debts of such corporation, by reason of their ownership of such shares. He shall assess against such shareholders the amount which he then deems necessary for the payment of such debts, not however exceeding the maximum liability of such shareholders, as provided by law." (Italics supplied.) *273
To the assessment made by the Secretary of Banking acting as a Receiver of the closed bank there is no defense except as we said in Bell v. Culler,
The question now before us was decided by this court in the case of Kirschler v. Wainwright,
It was not even contended in that case that the statute began to run when in the judgment of some jury the receiver should have made the assessment against stockholders, but if that was the date from which the six year limitation should have been computed this court would have said so in the comprehensive opinion filed.
Zollmann on the Law of Banks and Banking, Permanent Edition, Vol. 1, Sec. 516, p. 402, makes this statement: "Since the liability of a stockholder in a national bank is conditional, the statute of limitations does not begin to run in favor of a stockholder until the assessment has been made by the Comptroller. *274
"On the appointment of a receiver, the stockholder merely knows that his liability is contingent on the insufficiency of the assets to pay the creditors and the declared ascertainment of this fact by the Comptroller.
"The fact that the Comptroller has unreasonably delayed1 such assessment is immaterial."
The Comptroller of the Currency bears substantially the same relation to national banks as a state Secretary or Superintendent of Banking bears to state banks.
Both Federal and State appellate courts seem to be in complete accord in holding that the question as to the time when an assessment shall be made by the appropriate official against stockholders of closed banks is a matter that must be left to that official's determination. In Kennedy v. Gibson,
"The receiver is the instrument of the comptroller. He is appointed by the comptroller, and the power of appointment carries with it the power of removal. It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of suit by the receiver. The fact must be distinctly *275 averred in all such cases, and if put in issue must be proved."
In Rankin v. Barton,
In Hale v. Cushman,
In Miller v. Stock,
The precise question as to the time when an assessment against stockholders of closed banks should be made was raised in the case of Cruse v. Shaw et al.,
Not only is the applicable section of the Banking Code so clear in vesting discretion in the Secretary of *277
Banking to "as soon as expedient estimate the amount which shall be assessed against all shareholders . . ." that no interpretation ought to be necessary, but so to interpret the act as to make the Secretary's discretion a matter for a jury's decision in every one of the thousands of cases in which the Secretary sues the shareholders of closed banks would lead to results that are absurd and unreasonable, and such a construction of statutes the 51st section of the Statutory Construction Act of May 28, 1937, P. L. 1019 (46 P. S. 551), declares should be avoided. See Watson v. Witkin, et al.,
The rule that the statute of limitations does not begin to run in favor of a stockholder of a closed bank until the amount of his assessment is fixed seems to be universally applied whenever the question has arisen.3 *279 Apparently the question has not arisen frequently, for but few persons would see any possibility of a successful raising of the plea of "unreasonable delay" or laches against the official who is entrusted by the appropriate sovereignty (national or state) with the important duty of liquidating insolvent banks in his jurisdiction.
The decisions of this court on the question of when the statute of limitation begins to run against the Secretary of Banking in a suit to enforce the statutory liability of shareholders in closed banks of which the Secretary is the receiver, in Kirschler v. Wainwright, supra, and in Bell,Secretary, v. Cabalik, supra, which decisions are now followed in this case, should leave no room for any further doubt as to the law governing this important matter.
The liability of stockholders of a banking institution is contractual in its nature. Braver "Liquidation of Financial Institutions," Sec. 400 at 426: "A stockholder in a bank of a foreign state is bound to the extent of the liability imposed by the laws of that state, as the laws of that state control in the determination of the rights and obligations of the stockholders and the procedure to be followed in fixing such liability." Broderick v. Rosner,
In California, a similar ruling as to when the statute of limitations begins to run in favor of stockholders of insolvent banks was made in the case of Richardson, Superintendent ofBanks, v. Craig et al., 77 Pac. R. 2d 1077. The law in Michigan is in accord with the above decisions. See Burger'sEstate,