No. 2581 | 3rd Cir. | Dec 28, 1920
In this litigation, instituted by a receiver of an insolvent national bank to collect an assessment from the executors, trustees, legatees or devisees of a deceased shareholder, culminating-after eighteen years in a decree against one of the executors personally on his individual liability as a tort feasor, many questions have been raised and decided, which,' as we regard the case, do
The First National Bank of Alma, Kansas, was incorporated in 1887 under the National Bank Act (13 Stat. 997). Robert H. Miller, owner of 150 shares of its capital stock, died August 31, 1890. In the following November the bank closed its doors and was declared insolvent by the Comptroller of the Currency.
The shares of stock owned by the decedent passed to Charles R. Miller and James Baily, executors named in his will, and were accounted for in the inventory and appraisement of his estate. Charging themselves with the amount of the appraisement, the executors, in October, 1892, passed their first and final account showing a distributive balance of $18,993.75. This balance, as evidenced by releases and acquittances of record, was fully distributed to the legatees .named in the will. These embraced Charles R. Miller, trustee under the will of Robert II. Miller, Deceased, and Charles R. Miller and sundry other named children of the testator. As the distribution was made conformably with the law's of Delaware, it does not appear whether the shares of stock—then having become valueless—-remained in the hands of the executors as a part of the testator’s estate, not administered, or had been distributed by them to the legatees.
In January, 1893,—that is, in the year following the final settlement of the estate of Robert H. Mijler,—the Comptroller of the Currency ordered an assessment of $44 upon each share of the capital stock of the bank. This assessment on the shares of the testator was not paid by the executors or distributees of his estate nor was payment thereof demanded by suit. Action therefor has for a long time been barred by statute of limitations. In December, 1900, a second assessment, amounting' to $34.60 on each share, was ordered and demand therefor was duly made upon shareholders as provided by Sections 5151 and 5234 of the Revised Statutes of the United States.
In April, 1902, George C. Rankin, the third receiver of the bank, filed a bill in the Circuit Court of the United States for the District of Delaware to enforce the collection of the last assessment against Charles R. Miller and James Baily, Executors of the estate of Robert H. Miller, deceased; Charles R. Miller and James Baily, Trustees under the will of Robert FI. Miller, deceased; The Equitable Guarantee & Trust Company, a corporation under the laws of the Stale of Delaware, as surety for Charles R. Miller and James Baily, Executors of Robert FI. Miller, deceased; Wilmer W. Miller, Annie M. Baily, Elizabeth M. Baily, Charles R. Miller and R. Miller Baily. By this bill the present litigation was begun. Between the dale of filing the bill and the next pertinent date presently to be named, Rankin resigned and Scott Nesbitt was appointed receiver. Although apparently Nesbitt w'as not a party to the suit, the case proceeded. Sun
On this opinion no decree was entered. In December, 1915,—more than two years after the opinion of 1913 had been filed (a motion for a decree nunc pro tunc having been made and denied),—a supplemental bill was filed by Charles A. Korbly, the receiver succeeding Nesbitt. 'The filing of this bill was followed by the defendant’s motion for its dismissal, followed later by confusion in the record out of which arose a question of abatement of the suit, disposed of adversely to the defendant by Judge McPherson in 1918 by an opinion reported at 266 F. 236" court="D. Del." date_filed="1918-08-19" href="https://app.midpage.ai/document/rankin-v-miller-8816710?utm_source=webapp" opinion_id="8816710">266 Fed. 236.
On Korbly’s resignation, Charles D. Hamner, the last of six receivers, was appointed, and in August 1918, he was granted leave to file still another supplemental bill, which, being connected by reference with the preceding Korbly supplemental bill and the Rankin original bill, was acted on by Judge Witmer in January, 1920, in an opinion (to which we shall refer as the final opinion) following that of Judge Bradford in 1913, and filed preliminary to the entry of the decree now appealed from, holding Charles R. Miller individually liable for the assessment on the stock of his ancestor.
The original bill of complaint was brought, as we have said, against sundry persons, among whom was Charles R„ IVJ.iller in his several capacities of co-executor, c.o-trustee, and co-distributee under the will of the deceased shareholder of an insolvent national bank, to enforce Lhe liability prescribed by Sections 5151 and 5152 of the Revised Statutes. By force of Section 5151 liability was fastened on the estate. This section provides that,
“The shareholders of every-na tional banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount Invested in such shares.”
Realizing from the terms of Section 5152 that
“Persons holding stock as executors, administrators, guardians, or trustees, shall not be personally subject to any liabilities as stockholders,”
the draftsman of the bill framed it on the theory, first, that complainant would find the estate of the deceased shareholder sufficient in assets or in the executors’ surety to meet its statutory liability; and, if not, then he would follow the estate in the hands of those to whom it had been distributed. Pursuing this thfeory, the bill prayed that the amount of the assessment “be declared a lien upon all the estate of die said Miller that may have been received -by the beneficiaries under the will of the said Robert H. Miller, deceased, or by the executors or trustees as aforesaid;” and that, “the executors, trustees and beneficiaries may be restrained from spending or disposing of any part of the said estate which may be held by said executors, trustees and beneficiaries;” and that the court may decree that they are “collectively and severally indebted” to the complainant in the named sum; and that the complainant may be granted “such other and further relief as the circumstances and the nature of the case, and equity, may require.” It thus appears, not from the hill alone but also from the contention of counsel for the receiver, referred to by
As the complainant did not, by his original bill, declare on a devastavit and did not pray that'tire defendants be held to individual liability therefor, it appears that the court by its opinion, of 1913 granted relief not prayed for in the original bill on a case not made in that bill. As the court’s theory of relief shown in that opinion was carried into the decree by the final opinion, we must pause here and examine the first opinion for error.
We are of opinion therefore that there was error in the relief awarded by the opinion of 1913 against Miller individually on the case made against him 'in the original bill, and that, in so far as the decree entered 3>ears afterward grants this relief on the original bill, as distinguished from the relief granted on the supplemental bill, it should be reversed.
We now come to that part of the decree which gives the same relief against Miller under the supplemental bills.
For some reason not entirely clear, no decree was entered on the opinion of 1913. But two' years later, another receiver, Charles A. Korbly, evidently doubting the stability of a decree awarding relief inconsistent with the case made by the bill, filed a supplemental bill quoting expressly from that part of the court’s opinion of 1913 in
We do not understand it to be questioned that the case made and relief granted under the Korbly and Hamner supplemental bills were different from the case made and relief sought by the original bill.
Whether the Statute of Limitations runs against the action declared on in the Korbly supplemental bill and ultimately decided by the decree depends on the practice in Delaware of allowing amendments and supplemental bills changing the cause of action in a pending suit. The policy of the law with reference to amendments in suits at law, prevailing in Delaware and elsewhere, was discussed at length by the Superior Court and the Supreme Court in Gatta v. P., B. & W. R. R. Co., 1 Boyce (24 Del.) 293, 76 A. 56" court="Del. Super. Ct." date_filed="1910-04-06" href="https://app.midpage.ai/document/gatta-v-philadelphia-baltimore--washington-railroad-co-6555916?utm_source=webapp" opinion_id="6555916">76 Atl. 56; and P., B. & W. R. R. Co. v. Gatta, 4 Boyce (27 Del.) 38, 85 A. 721" court="Del." date_filed="1913-01-22" href="https://app.midpage.ai/document/philadelphia-baltimore--washington-railroad-v-gatta-6556129?utm_source=webapp" opinion_id="6556129">85 Atl. 721, 47 L. R. A. (N. S.) 932, Ann. Cas. 19161), 1227. While the decision in that case does not rule this case, the discussion there pursued throws light on the question now under review. There it appears from the cases cited that whether a new action declared on by amendment is barred by a statute of limitations depends largely on the form of the action, that is, whether instituted by summons to be followed by declaration or complaint showing the cause of action, in which case the statute ceases to run upon the bringing of the suit; or, whether commenced by bill of complaint or petition showing the cause of action, to be followed later by summons or subpoena, in which case the statute continues to run and operates as a bar to an action subsequently pleaded by amendment at a period beyond its limit. Applying this distinguishing principle to the practice in Delaware where suits are begun by summons and followed by declaration, the Delaware courts have held that an action subsequently declared on by amendment is not barred, though the amendment be made after the statute has run its limit. But the same policy that governs in suits at law applies with equal reasoning to the reverse procedure in suits in equity, where, as here, the initial
We find that the relief granted by the decree was not agreeable to the case made by the original bill; and that, though agreeable to the case made by the supplemental bills, it was granted on a new case there made against which the Statute of Limitations had run and had for many years barred recovery.
On this ground, without reviewing or deciding other questions raised on the appeal, we find error and direct that the decree below be reversed and the case remanded to be disposed of in a manner not inconsistent with this opinion.