149 F.2d 864 | 5th Cir. | 1945
When appellants were here before,
After remand of the cause, plaintiff’s complaint was amended to make it more definite in certain particulars and to abandon claims for overcharges for rents, auditors’ and attorneys’ fees, and for damages growing out of the R. F. C. loan transaction. This left in the petition a claim for damages inflicted through use of the Securities Company by the Bank of Commerce, predecessor of the defendant, DeSoto Bank, and vague and general claims that the DeSoto Bank had, between the time the Bank of Commerce went into liquidation in 1933, and the DeSoto Bank, its successor, went into liquidation in 1936, misused its position as sole owner of the common stock of the Securities Company. Federal Deposit Insurance Corporation, as Receiver, and the DeSoto Corporation filed answers denying the allegations of the petition, and Federal Deposit Insurance Corporation, as Receiver, moved for summary judgment. In support of this motion it alleged and proved that, under Section 4 of Act 300 of 1910 of the Legislature of Louisiana,
The district judge, on the authority of In Re Interstate Trust & Banking Co., 188 La. 211, 176 So. 1, ruled that the invoked act covered all claims against a banking corporation in liquidation, including claims derivatively presented, as those in this suit are, and that failure to file claim within the time fixed in the notice, and to sue within six months after rejection was a complete bar.
From the judgment on the motion dismissing the demands of plaintiff and intervenors as against the DeSoto Bank and Trust Company in receivership but without prejudice to their suit against the defendant, the DeSoto Corporation, plaintiff and intervenors have appealed. Here they assert that the invoked act does not apply to the claims in suit because (1) they are asserted not directly by the corporation but derivatively by preferred stockholders; (2) if the claims are within the statute, the maxim “Contra non valentem agere nulla currit praescriptio”, ought to be applied here because they made- a sufficient showing that they did not, and could not, know of the existence of the claim until long after the time fixed in the notice for filing claims; and (3) if the act is applicable to part of their claims, it is not applicable to the $16,225 claimed indebtedness from Securities to the Bank of Commerce which was paid to the receiver after the notice had begun to run, and that the claim, at least for this amount, is a claim arising after the notice.
We think the district judge was right throughout. The invoked act contains no exception of, no qualifications as to, kinds of claims, or by whom pressed
Appellee, as a first reply to appellants’ claim that such a showing has been made, insists that the statute in question is not one of prescription but of peremption, that is one fixing a condition precedent to suit/ and that the invoked maxim applies only to statutes of limitation, those which by lapse of time cut off the right to sue.
We do not agree with this view. No Louisiana case has been cited to us in which the statute in question has been declared to be a statute of peremption. All of. the cases cited to us which have dealt with the statute have treated it as prescriptive.
As a second reply to appellants’ claim that the time prescribed by statute has not run, appellee, pointing out that the Louisiana Civil Code makes no provision for exceptions to the running of prescription
We agree. If appellants have a claim, it accrued to them many years before the DeSoto Bank was placed in liquidation. Whatever might be said as to the excuse for the long delay in asserting the claim, if the claim was one for acts committed by the DeSoto Bank after, in 1933, it took over the assets and assumed the liabilities of the Bank of Commerce, and we think there would not have been too much to say, the fact is that the liability, if any, of the DeSoto Bank is only derivative through its purchase and assumption of the liabilities and assets of the Bank of Commerce. The wrong doing alleged is that of the Bank of Commerce. Thus the delay in moving to ascertain and redress the supposed wrongs done to the Securities' Company not only compasses a term of nearly ten years from the time when, in 1929, 1930 and 1931, the mishandling by the Bank of Commerce was alleged to have occurred, to 1939, when it is claimed the wrongs were first discovered, but. the official liquidation in 1933 of the Bank of Commerce and the sale of its assets to DeSoto.
To hold that appellants during this long period of time and under these circumstances should be held excused from ascertaining the existence of and pressing their claims against the Bank of Commerce, and its assignee, would be not only contrary to the principle of repose on which general statutes of limitation are founded, but a flying in the face and a defeat of the wholesome purpose of Section 4 of Act 300 of 1910 to bring about prompt and speedy liquidation of insolvent banks with prompt payment of depositors.
Finally, there is no substance in appellants’ third point that as to the $16,225 paid on the obligation of Securities to the receiver of the DeSoto Bank after that bank had gone into liquidation, the wrong occurred not before but after the liquidation notice. The wrong complained of as charged in the petition was the practice of using the Securities Company as a dumping ground for semi-worthless notes and other assets by making transfers of such notes and assets to it. The issuance and existence of the obligation in question was not one of these wrongs. Indeed, it is not claimed that there was anything wrong with it except that instead of being collected it ought to have been offset against the indebtedness claimed against the banks because of their wrongdoing. The receiver of the DeSoto Bank certainly committed no wrong in collecting the obligation. On its face and in fact the obligation was valid, and it was the duty of the receiver to collect it. The judgment was right. It is affirmed.
Mullins v. DeSoto Securities Co., Inc., et al., 5 Cir., 136 F.2d 55.
“Section 4. Be it further enacted, etc., That as soon as practicable after taking such possession of a corporation the State Examiner of State Banks shall cause to be published a notice to appear at least once per week for three months in such newspaper as he may select. This notice shall call upon all persons, other than depositors, who may have claims against the corporation to file the same with the State Examiner of State Banks and make legal proof as to the justice thereof, at a place and within a time not earlier than the last day of publication of such notice to be specified therein. If the said Examiner shall doubt the justice or validity of any such claim so filed, he may reject the same and serve notice of such-rejection upon the claimant either by mail or personally. An affidavit of such notice shall be filed in the office of the State Examiner of State Banks and shall be prima facie evidence of such service. An action upon such claim may be brought only within six months after the date of such service.”
Cf. In re Interstate Bank & Trust Co., 188 La. 211, 176 So. 1.
Interstate Bank & Trust Co., 188 La. 211, 176 So. 1; Wren v. Brock, La.App., 8 So.2d 763.
Brand v. Lindale Canning Co., Tex. Civ.App., 85 S.W.2d 323; State Banking Board v. Pilcher, Tex.Com.App., 270 S.W. 1004; Balfour Co. v. Gossett, 131 Tex. 348, 115 S.W.2d 594; Gossett v. Green, 137 Tex. 50, 152 S.W.2d 733.
Judge McCaleb, in Cruze v. Life Ins. Co. of Virginia, La.App., 184 So. 735 at 737, has thus summarized the law of Louisiana:
“Under the applicable articles of the Civil Oode, namely, 3521 to 3527, inclusive, which treat of the causes suspending the course of prescription, no exemptions are granted in favor of a creditor who is ignorant of the existence of his right. s, * *»
“It would seem that a literal interpretation of the language of the Code precludes a consideration of the doctrine ‘contra non valentem’ in this state. Be this as it may, the 'Supreme Court has many times reeognized the underlying justice of the doctrine and has applied it on many occasions. The leading authority on this subject is the case of Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598, where the Court discussed this question in detail and concluded that the doctrine may be invoked in this state, as a cause for suspending the course of prescription, in eases where the debtor has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt.”