Metcalfe v. Merchants & Planters' Bank

| Miss. | Nov 15, 1906

Calhoon, J.,

delivered the opinion of the court.

The complaint of appellants in the court below is presented' in two aspects, and is filed by depositors, holders of exchange, and one stockholder of appellee bank, against the bank, its officers, directors, guarantors, sureties, assignee-receiver, and certain public officials; it seeks a variety of relief against a variety of separate independent acts of commission and omission, styles itself “a cross-petition or bill of complaint,” and asks the court to treat it “as a cross-petition or bill of complaint as their equities may require,” and “that this cross-petition be treated as a cross-petition or bill of complaint, as this court may deem proper and necessary.” On motion of defendants the complainants were compelled to elect whether they would proceed as upon original bill in equity, or as upon cross-petition under Ann. code of 1892, ch. 8, in reference to “assignments for benefit of creditors.” To this action compelling election they excepted, and then elected to stand in the court as upon cross-petition,- whereupon a demurrer to it as such was sustained. Appended to this instrument is what appears on its face to be a perfectly valid general assignment, without preferences, for the equal benefit of all creditors, of every species of property, right, and claim, to one Atterbury, as assignee, against whom no objection appears, but who subsequently resigned, and. J. S. Walker, president of the bank, was appointed in his stead, and he ip objected to as being interested. Objection is made to the allowance of a prior claim of the sheriff for public moneys deposited, which they say should be postponed to previous depositors. Another objection is in these words: “That the chancellor passing upon said matters and making the orders therein was disqualified to act in the matter, adjudicate thereon, or to make the orders, decrees, and appointments therein made, because’he was a party to said suit and interested in the cause, and is still a party thereto and interested therein.”

On the point of the deposit by the sheriff we decide that it was a trust fund, under Ann. Oode 1892, § 3077, and entitled to priority of payment out of the assets of the bank. Fogg v. Bank, 80 Miss., 755 (s.c., 32 South. Rep., 285).

The averment that the chancellor was disqualified because “a party to said suit and interested therein,” is insufficient, because it is not explained how he was a party or how interested. ITe nowhere appears to be a party on the pleadings, nor is it shown how he was interested.

It was correct to compel complainants to elect whether they would proceed by way of original bill or by cross-petition under chapter 8 of the code. It is not insisted that the assignment was fraudulent, nor is any valid reason given why it should not be enforced. It conveyed everything, and under it the various suits necessary, as indicated in the complaint, to recover property or money rights, may be instituted by the assignee and receiver at the instance of any creditor. The two proceedings sought to be simultaneously or alternately prosecuted in the same proceeding were properly disallowed.

The general charge that the assignment was not “lawfully executed,” etc., is demurrable in not stating facts to show the court in what particular it was unlawful. On its face it appears perfectly valid and lawful. If there was, as complained of, an improper assignee or receiver in charge, it is no basis for this bill. Any creditor could apply for his discharge.

Affirmed.