176 Ga. 372 | Ga. | 1933
On May 22, 1931, the State superintendent of banks issued fi. fas. against Mrs. Hugh Wright, Miss Lucy White, Mrs. Prances M. Dearing Hay, and Mrs. B. A. Lunsford, as stockholders of the Bank of Newton County, it being recited in the fi. fas. that notice had been duly given. The defendants in fi. fa., after the levy, filed their affidavits of illegality. Subsequently the parties named and others, as stockholders of the bank, brought an equitable petition against T. C. Swann, N. S. Turner, and others, alleging that the named defendants constituted the officers and directors of the said bank for the years 1927-1930; that in December, 1926, the bank received notice from the State Banking Department that the capital stock of the bank had become impaired, and that it would be necessary to levy an assessment against the stockholders; that thereupon T. C. Swann and N. S. Turner “made a proposition to the stockholders to turn over their stock with full voting power to them, and to guarantee repayment of any cash advanced by them and to pay 100% assessment on their stock, and that they would furnish the bank from time to time sufficient money to carry on its business on a sound basis; and petitioners carried out their part of the contract;” that during the years specified the stockholders, having confidence in Swann and Turner, took no interest in the • management of the bank; that Swann and Turner did not in good faith carry out the terms of the contract, and did not furnish money to the bank as agreed; that in March, 1931, Swann and Turner, “who were in truth' and in fact the bank of Newton County, delivered the bank’s assets to the State Banking Department, and on May 5, 1931, filed an offer to purchase the assets of the bank by paying 60% to the depositors in cash,” which offer was accepted by the State superintendent of banks and was presented to the judge of the superior court, who approved the same, and Swann and Turner took
The defendants filed, general and special demurrers to the petition, on-the ground, among others, of nonjoinder of parties defendant, “in that the superintendent of banks of Georgia, as statutory receiver, and the Bank of Newton County are essential parties” in such a suit as this, and they are not named as parties. The demurrers were overruled. The court erred in overruling the demurrer based on the ground that the State superintendent of banks was a necessary party, in view of the allegations both in the affidavits of illegality and in the petition. And having erred in overruling this demurrer, what took place afterwards was nugatory.
Judgment reversed.