172 Ga. 591 | Ga. | 1931
Lead Opinion
On July 14, 1926,' while the Twiggs County Bank (a banking corporation under the laws of Georgia) was open and transacting business, one of its depositors, J. A. McCallum, who had on deposit $860, withdrew that amount from the bank by check. On the same day the institution was closed and taken in charge by the superintendent of banks. Suit was instituted by the bank, through the superintendent of banks in charge thereof, to recover this amount from McCallum, as withdrawn at a time when the bank was insolvent, and with a view of preventing application of its assets in the manner prescribed in the banking laws, or with a view of giving a preference to one creditor over another. It was alleged that “the assets of said bank, together with the assessment made upon its stockholders, will not be sufficient to pay the creditors and depositors in full, and the payment of said money to the said J. A. McCallum thus gave a preference to the said J. A. Mc-Callum over its other creditors.” The defendant demurred generally, because the petition set forth no cause of action in the plaintiff; because the facts alleged did not entitle plaintiff to recover; and because there was no allegation of any acts on part of the bank, or circumstances, showing an intent by the bank to create a preference in favor of the defendant, and no allegation of knowledge on part of defendant of insolvency of the bank. The judge sustained-the general demurrer and dismissed the petition, and the
In the petition for certiorari, complaint is made of various statements made in the opinion of the Court of Appeals; but the concluding division of the petition avers that the real question involved is this: “Can a payment made to a depositor of the bank while its doors are open and made in the ordinary course of its business be recovered back at the suit of the bank (through the superintendent of banks), unless it be shown that the customer of the bank at the time of the payment had knowledge of the insolvency of the bank, and knew that it was the purpose of the bank to create a preference by paying his check?” It is unnecessary to set out and treat separately the several errors complained of; the question to be decided consisting only of the correctness of the construction of article 19, section 46, of. the banking act of 1919, by the Court of Appeals in the case before us.
Section 46 of article 19 of “an act to regulate banking in the State of Georgia; to create the Department of Banking . . ; to provide penalties for the violations of laws with reference to banking and the banking business; and for other purposes,” is as.follows: “All transfers of notes, bonds, bills of exchange, or other evidences of debt owing to any bank, or deposits to its credit; all assignments, mortgages, conveyances, or liens; all judgments or decrees suffered or permitted against it; all.deposits of money, bills, or other valuable things for its use, or for the use of its stockholders or creditors; and all payments of money, either after insolvency or
This court has several times alluded to the similarity between the banking act of 1919 and the national banking' act, and has several times construed our banking act in accordance with the construction placed upon the national banking act by the Federal court. In McDonald v. Chemical National Bank, 174 U. S. 610 (supra), the Supreme Court of the United States had before it the question as to payments made by a bank while still open for business, and ruled that, though such bank was insolvent, the payments were not made in contemplation of insolvency or with a view to prefer the payee. In that case a receiver was appointed for the Capital National Bank of Lincoln, Nebraska, and, just as the superintendent of banks lias done in the present instance, this receiver
Judgment reversed.
Concurrence Opinion
concurring specially. Section 46 of the act of 1919,