Braun v. Limerick Nat. Bank, 983.

• Decision Date: 12 February 1935
• Docket Number: No. 983.,983.
• Citation: 9 F. Supp. 816
• Parties: BRAUN v. LIMERICK NAT. BANK et al.
• Court: U.S. District Court — District of Maine

9 F. Supp. 816

BRAUN v. LIMERICK NAT. BANK et al.

No. 983.

District Court, D. Maine, S. D.

February 12, 1935.

Cook, Hutchinson, Pierce & Connell, of Portland, Me., for plaintiff.

Drummond & Drummond and Elton H. Thompson, all of Portland, Me., and Edw. S. Titcomb, of Sanford, Me., for defendants.

PETERS, District Judge.

This matter was heard on motion to dismiss the bill, which is a creditors' bill brought by the conservator of a trust company against a national bank and its stockholders under authority of the Act of June 30, 1876, § 2 (12 USCA § 65).

The defendant bank went into voluntary liquidation in 1931.

The first ground advanced in support of the motion is the alleged want of necessary parties, because the liquidating committee or agent was not joined as a defendant.

Neither the statute nor the situation requires such a joinder. According to the bill there are no assets, except this so-called asset of stock liability, and there is no allegation of any misfeasance or other activity involving any agent or committee. If it should later appear that the presence of any other person is necessary to a complete determination of the cause, he could be added under rule 37.

The second ground, in substance, is that, as the defendant bank is insolvent, the bill should have contained a prayer for a receiver; that effective relief can only be had through a receiver.

This objection also is not well taken. The act of 1876, above referred to, contains two sections adapted to different situations. Section 1, now 12 USCA § 191, covers involuntary liquidation of a national bank, and requires the appointment of a receiver by the Comptroller.

Section 2, now 12 USCA § 65, covers voluntary liquidation and does not require a receiver, although no doubt one could be appointed as an arm of the court if it became necessary or convenient in the course of the enforcement of the stockholders' liability in the manner provided for in that section. The defendant stockholders are apprehensive lest their stock liability be the subject of another action brought by a receiver appointed by the Comptroller, and that their statutory liability be collected twice. However, that is not possible. Only one liability has been created by statute, although there is more than one possible way of enforcing it, depending upon the situation. The matter of voluntary and involuntary liquidations are covered by the two sections referred to. Under some circumstances the liability may be enforced under the general...