58 S.W.2d 210 | Ark. | 1933
STATEMENT BY THE COURT.
The Security Bank Trust Company was placed in the hands of the State Bank Commissioner for liquidation in November, 1930, and just before it was taken over a considerable part of its assets, consisting of the old bank building where it had formerly done business together with some of its best notes, were sold, assigned and made over to some person or persons and the proceeds thereof were not accounted for in the schedule for the inventory of the assets of the bank. *2
The Bank Commissioner administered its affairs for only a short time, and it was reorganized by some of the stockholders of the old bank, and all of the assets of the old bank were by the Bank Commissioner made over and assigned to the new organization under a written contract, which mentions no other consideration. The reorganized bank proposed to put up $50,000 capital stock and acquire all the assets of the old bank, including the assessments already levied against its stockholders, and all assets of every kind, character and description. The new bank was to have the use of the name of the Bank Commissioner in prosecuting the necessary suits. The contract was made by a proposal to the State Bank Commissioner by some stockholders of the old bank, which was merely accepted by him. The proposition was to liquidate the affairs of the old bank, which should be done within 1931-32-33.
The appellant, owner of 35 shares in the old bank, took no part in the reorganization, and soon after the organization of the new bank it joined with the State Bank Commissioner under its new name and brought suit against the appellant for $3,500 for stockholder's liability as the owner of said stock under 702, Crawford Moses' Digest.
Appellant resisted the action and filed an answer and amendment thereto, setting up as defenses that since the assets were transferred by the Bank Commissioner the power of the Bank Commissioner ceased, and thereafter he was not and could not be considered in any litigation arising with reference to liquidation of the affairs of the old bank, it being claimed that the law did not authorize him to transfer his authority or lend his name to any person, firm or corporation in aid of such person, firm or corporation in seeking any kind of judgment, and the approval of the chancery court of the contract between the Bank Commissioner and the reorganizers of the new bank did not give it any legal effect and cannot authorize a suit against the appellant. It was also insisted that the assessment of the stockholder's liability was not an asset and could not be assigned. *3
It was agreed that the Bank Commissioner levied the stock assessment against appellant before the contract was made by the Bank Commissioner relative to the assets of the insolvent bank. Upon the trial of the cause, judgment was rendered against appellant, from which comes this appeal.
(after stating the facts). It is insisted first that the court erred in refusing to transfer the cause to the chancery court that appellant might have an opportunity to show that the old bank was not really insolvent when it was declared to be so and taken over by the Bank Commissioner for liquidation. He insists that, if certain of the old bank's property wrongfully transferred to others could be recovered, it was sufficient to pay all its liability without any stock assessment. But, however this may be, this action is not the proper one to try the question of fraud or insolvency. Necessity for the levy and call of the stockholder's assessment by the Bank Commissioner was discussed at length in Davis v. Moore,
It is next insisted that the stockholder's liability was not an asset and could not be assigned in the disposition of the assets for organization of the new bank. It was said in Collman v. State,
We find no error in the record, and the judgment is affirmed.