Mullins v. De Soto Bank & Trust Co.

• Citation: 149 F.2d 864
• Decision Date: 14 June 1945
• Docket Number: No. 11304.,11304.
• Parties: MULLINS et al. v. DE SOTO BANK & TRUST CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

149 F.2d 864 (1945)

MULLINS et al. v. DE SOTO BANK & TRUST CO. et al.

No. 11304.

Circuit Court of Appeals, Fifth Circuit.

June 14, 1945.

Aubrey M. Pyburn, of Shreveport, La., for appellants.

Clyde R. Brown, of Monroe, La., and Lamar E. Colvin, of Mansfield, La., for appellees.

Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

When appellants were here before,¹ we affirmed the judgment as to Federal Deposit Insurance Corporation, individually. Holding that, on a motion to dismiss "because the complaint fails to state a claim for which relief can be granted", "all that was before the district judge on the motion to dismiss was the case as plaintiff's petition had alleged it", and that the judge had therefore erred in considering answers to interrogatories propounded to plaintiff, we reversed the judgment as to the other defendants, the DeSoto Corporation and Federal Deposit Insurance Corporation, as Receiver for DeSoto Bank & Trust Company.

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,² the Federal Deposit Insurance Corporation, as Receiver of the defendant, DeSoto Bank & Trust Company, had issued the notice required by the Act for legal proof of claims to be made not later than March 15, 1937; that plaintiff and intervenors had never, as required by the Act, filed the claims on which they sued; and that until May 26, 1939, when plaintiff, by letter of its attorney, demanded that the Securities Company sue for the alleged wrongs to it, defendant did not know, and never had heard, that any such claim was being made. Not at all disputing the truth of the facts alleged in the motion for summary judgment, plaintiff and intervenors, to avoid their effect, filed affidavits affirming that until the time of writing the letter in May, 1939, demanding that the Securities Company bring suit, they did not know and had had no notice of the acts for which they sued.

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 or presented. Enacted for the protection of depositors to secure prompt payment to them by early and expeditious settlement and liquidation of the affairs of failed banks, the courts of Louisiana³ have given it a meaning and effect calculated to attain just these ends. Neither the fact that the claim put forward here is one for mismanagement of one corporation by another owning or controlling all its common stock, nor the fact that the claim is pressed not directly by the corporation, but derivatively by preferred stockholders, is significant. The controlling fact under the statute is that the claim in question is a claim against a bank in liquidation, the presentation and settlement of which necessarily affects the amounts to be paid to the depositors and the time when, and conditions under which, such payments will be made. Unless, therefore, the record makes such a showing as would justify the holding that, without negligence or fault on claimant's part, the existence of their claims was not, and could not have been, known to them, and that, therefore, prescription has not been running, the district judge was right in holding that suit on the claims was barred.

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.⁴ In the Wren case it was specifically denominated a statute of prescription. It is true that the bar set up in the Wren case was based not upon a failure to file the claim within the statutory period, but upon the failure to bring the suit within six months after rejection, and that failure to bring the suit was excused not because of the minority of the claimant or because of any other application of the maxim, "Contra non valentem", but because the claim had not in fact been rejected and the six months' period for suing had not commenced to run. Texas has substantially the same statute, and it is determined there⁵ that it is a statute of...