226 P. 529 | Ariz. | 1924
— This action is by a single depositor of an insolvent bank against several individuals, directors of the bank at the time the deposit was made. The plaintiff undertakes to establish and enforce a liability under the authority of section 12, article 14, of the state Constitution, which provides that:
“Any president, director, manager, cashier, or other officer of any banking institution who shall receive, or assent to, the reception of any deposits after he shall have knowledge of the fact that such banking institution is insolvent or in failing circumstances shall be individually responsible for such deposits.”
The allegations of the complaint are intended to bring the proposed cause of action within the purview of this section, alleging that the same day upon which a deposit was made the bank was insolvent, and subsequently closed, passing under the control of a receiver.
But, aside from the direct reference made in his complaint to the constitutional basis for his action, all of the allegations of the complaint, if not directly pertinent to such a cause of action, do at any rate fail to state a cause of action upon any other ground. Liabilities arise either upon contract or by law. It is not pretended that any relief sought here grows out of a contract. The pleading alleges no common-law liability. It must therefore be, as indeed it is, based upon the constitutional provision which the pleader points out. Civil Code of Arizona, par. 709, subd. 3; Santa Cruz County v. McKnight, 20 Ariz. 103, 177 Pac. 256; Wells v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 37 L. R. A. 619, 48 Pac. 1090; McDonald v.
The appellee urges that the complaint is not only barred by the statute of limitations, but for other reasons fails to state a cause of action. Upon that point too his position seems to be well taken. The pleader alleges that upon the same day the deposit was made the bank was insolvent, but fails to state that it was insolvent at the time the deposit was made, or that the officers of the bank knew of such insolvency at the time the deposit was made. The liability of the defendants is no broader than the terms of the Constitution fixing such liability. There is no allegation of insufficiency of assets of the bank to pay depositors.
The complaint upon both grounds stated in the demurrer was obviously defective. The judgment based upon the demurrer will be sustained.
McALISTER, C. J., and ROSS, J., concur.