Anderson v. Anderson

• Decision Date: 31 December 1927
• Docket Number: No. 472.,472.
• Parties: ANDERSON v. ANDERSON et al.
• Court: U.S. District Court — Panama Canal Zone

23 F.2d 331 (1927)

ANDERSON v. ANDERSON et al.

No. 472.

District Court, N. D. Georgia, Atlanta Division.

December 31, 1927.

Smith, Hammond & Smith, of Atlanta, Ga. (Victor L. Smith, of Atlanta, Ga., of counsel), for plaintiff.

Little, Powell, Smith & Goldstein, of Atlanta, Ga., for defendant Pennington.

A. S. Thurman, of Monticello, Ga., and Lamar C. Rucker, of Athens, Ga., for other defendants.

SIBLEY, District Judge.

This bill in equity is brought against the directors of a failed national banking association by the receiver. It discloses, in paragraph 16, that W. B. R. Pennington, one of the defendants, ceased to be a director in the year 1921, six years before the bringing of this suit. Nothing is alleged in the petition in the way of concealment or otherwise to toll the statute of limitations as to him. He thereupon moves to dismiss the bill as to him on the ground that the matters complained of in it occurred, and any liability on his part therefor accrued, more than four years prior to the filing of the bill. The contrary contention is that the Georgia statute (Park's Ann. Civ. Code, § 4360), providing "all suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action accrues," is to be applied, and that twenty years not having expired, the defendant is still liable. It is true that section 93 of title 12 of the United States Code declares that every director who participates in or assents to any knowing violation or knowing permission to violate any of the provisions of the national banking law shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person, shall have sustained in consequence of such violation. The liability here declared does not annul the common-law duty to exercise ordinary care and prudence as a director, and violations both of the statutory and common-law duty may be asserted in one suit. Bowerman v. Hamner, 250 U. S. 504, 39 S. Ct. 549, 63 L. Ed. 1113.

In the present petition there does not appear to be any direct and specific charge of a willful and knowing violation of duty under any particular provision of the National Banking Act. I do not think the petition should be held to set forth a cause of action under Code, section 93 of title 12. There are references to "excess loans" and "bad loans" made by the several boards of directors, but in each case the charge is that they acted negligently and without proper care. There is no charge of willful or knowing violation of any particular provision of the National Banking Act. It is settled that, in suits to recover against directors of national banks, where no limitation is prescribed by Congress, the state statutes of limitations apply. Curtis, Receiver, v. Connly, 257 U. S. 260, 42 S. Ct. 100, 66 L. Ed. 222; McClaine v. Rankin, 197 U. S. 154, 25 S. Ct. 410, 49 L. Ed. 702, 3 Ann. Cas. 500. The general statutes of Georgia...