Blythe v. Enslen

• Decision Date: 16 October 1924
• Docket Number: 6 Div. 130
• Parties: BLYTHE et al. v. ENSLEN et al.
• Court: Alabama Supreme Court

102 So. 621

212 Ala. 463

BLYTHE et al. v. ENSLEN et al.

6 Div. 130

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Jan. 28, 1925

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Sylvester V. Blythe and others against Eugene F Enslen and others. From a decree sustaining demurrer to the bill, complainants appeal. Affirmed.

See also, 203 Ala. 692, 85 So. 1; Id., 209 Ala. 96, 95 So. 479.

Thomas J., dissenting.

John W. Altman and Jerone Edmundson, both of Birmingham, James J. Mayfield, of Montgomery, and Wert & Hutson, of Decatur, for appellants.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellees.

SAYRE J.

This case has been here twice before. 203 Ala. 692, 85 So. 1; 209 Ala. 96, 95 So. 479. On both prior appeals this court sustained demurrers to appellants' bill. Briefly to repeat what has already been shown, the Jefferson County Bank, the new bank, at the end of appropriate proceedings in the chancery court, became the purchaser and assignee of the assets of the old bank, the Jefferson County Savings Bank. The new bank now is, or at the filing of this bill was, in the hands of the superintendent of banks, and in process of liquidation. The new bank acquired the assets of the old from the superintendent of banks by virtue of an agreement approved by the court, in which the new bank, organized for the purpose, took over the assets and assumed the obligations of the old bank. The superintendent was a statutory assignee of the assets of the old bank, a receiver with such powers and duties as are usually incident to receiverships, and hence took only such property rights as the old bank had. Montgomery v. Chemical Nat. Bank, 209 Ala. 585, 96 So. 898. He had no greater rights than those possessed by the old bank and could convey no greater rights. Complainants are stockholders of the new bank and complain in the right of the new bank. The right of the new bank rests upon the assignment to it of the assets of the old bank. Complainants are in no sense creditors of the old bank. They complain in the right of the new as assignee of the old. But it is not perceived how the old bank, proceeding necessarily for the benefit of its stockholders, could be heard to complain of transactions, declarations of dividends, of which all its stockholders took the benefit; and this, in substance, is what we intended to say in our opinion on the last...