169 Ga. 82 | Ga. | 1929
The assets of the Bank of Tallapoosa were surrendered on the first day of December, 1925, to the superintendent of banks for liquidation, as is provided by the provisions of article 7 of the banking act of 1919. A liquidating agent was employed, and the usual expenses incurred from that time until the spring of 1928. The superintendent determined to sell the assets then remaining in his hands, and to wind up the liquidation of this bank. To accomplish this purpose he presented to the judge of the superior
The controlling question in this case is whether or not a judge of the superior court can by mandamus compel the superintendent of banks to deliver to a purchaser property bought at a sale authorized by the provisions of section 7 of article 7 of the banking act of 1919 (Ga. L. 1919, pp. 135, 156), over the protest of the superintendent, where the sale of the assets had taken place upon applica
In Fifer v. Williams, 5 Fed. (2d) 386, in discussing such an application the Circuit Court of Appeals held:' “There is no suit; no parties in the legal understanding of the term; no process must issue; no one is authorized to appear on behalf of the receiver or any one else, or to subpoena witnesses. It is an ex parte proceeding, and, though by the will of Congress put under judicial cognizance, is not by its own nature a judicial controversy.” In re Union Bank of Brooklyn, 163 N. Y. Supp. 485, 486, the Appellate Division of the Supreme Court of New York said: “Thus it appears as superintendent he takes possession, holds possession until
When the court undertook thus to order the superintendent as a liquidator, it reached out to direct a State officer in the discharge of statutory duties, involving discretion, conferred upon him, not the court, when he and not the court was in custody of the assets. . . Liquidation does not necessarily require nor imply judicial proceedings. . . It is the superintendent, not the court, who is authorized to sell or otherwise dispose of [the assets]. . . The fact that the superintendent, when he sells the real and personal property of this corporation, must sell them ‘upon such terms as the court shall direct/ does not in itself empower the court at its own instance to sell them forthwith, or at a specified time, if it is convinced that they should be sold. It is not for the court to set itself above the judgment and discretion of administrative officers to whom the law commits a decision, for thereby the court but confronts its opinion with his opinion.” See, in this connection, Bennett v. Duke, 38 Ga. App. 598 (144 S. E. 686). From the decisions and the reasoning in cases decided by this and other courts, we have concluded that the order ordering the sale and that confirming the sale were not in the nature of judicial decrees or judgments, but were administrative in their character; and that the court should not have granted the mandamus absolute.
Judgment reversed.