Bullock v. Oliver

• Decision Date: 20 February 1923
• Docket Number: 3234.
• Citation: 116 S.E. 293,155 Ga. 151
• Parties: BULLOCK v. OLIVER.
• Court: Georgia Supreme Court

116 S.E. 293

155 Ga. 151

BULLOCK v. OLIVER.

No. 3234.

Supreme Court of Georgia

February 20, 1923

Syllabus by the Court.

While a chancery or statutory receiver cannot sue in the courts of a foreign jurisdiction by virtue of his appointment alone, he can do so when he is expressly authorized by statute to sue or when he is expressly or by necessary implication vested with title, or when he is made a quasi assignee or representative of creditors.

A receiver appointed by the comptroller of Florida under the statute of Florida (Revised General Statutes of Florida 1920 § 4162), to take charge of the assets and affairs of an insolvent bank in that state, can sue in the courts of this state to enforce the statutory liability of stockholders in such bank; the receiver being expressly authorized by said statute to "sue for and enforce the individual liability of stockholders."

The decision of the Court of Appeals, holding that the Florida receiver could not sue in the courts of this state to enforce such liability of a stockholder, is reversed.

Certiorari from Court of Appeals.

Action by S. H. Bullock, receiver of the State Bank of Kissimee Fla., against E. J. Oliver. Judgment for plaintiff on demurrer was reversed by the Court of Appeals (28 Ga.App 446, 111 S.E. 680), and plaintiff brings certiorari. Reversed.

Hill, J., and Russell, C.J., dissenting.

Eugene Pollard, of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

HINES J.

S. H. Bullock, as receiver of the State Bank of Kissimee, Fla., a bank chartered under the laws of Florida, filed a petition in Chatham superior court against E. J. Oliver, to recover an assessment levied on 23 shares of the capital stock of said bank owned by Oliver. This assessment was made under a statute of the state of Florida, the material portions of which will be referred to later. The defendant filed a demurrer to the petition, which was overruled by the court. To this judgment the defendant excepted and took the case to the Court of Appeals. That court reversed the judgment overruling the demurrer. Oliver v. Bullock, 28 Ga.App. 446, 111 S.E. 680. The case is now in this court on writ of certiorari, brought to review the judgment of the Court of Appeals.

The statute of Florida provided that--

"Stockholders of every banking company shall be held individually responsible equally and ratably and not for one another for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares." Florida Revised General Statutes, § 4128.

The suit in this case was brought to recover an assessment made upon Oliver under the liability created by this statute. The statute (Rev. Gen. St. Fla. 1920, § 4162) under which this receiver was appointed is as follows:

"On becoming satisfied, from the reports furnished to him by a state bank examiner, or upon other satisfactory evidence thereof, that any bank, banker, banking firm, banking or trust company or corporation doing business in this state under the state laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm, banking or trust company or corporation doing business in this state, under such state laws, is in an unsound condition, or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without authority of law or in violation of law, * * * the state comptroller may forthwith designate and appoint a receiver to take charge of the assets and affairs of such bank, * * * and such receiver shall be subject to dismissal by the comptroller, whenever in his judgment such dismissal is deemed necessary or advisable; when one receiver is dismissed, another may be duly designated and appointed. Such receiver, under the direction and supervision of the comptroller, shall take possession of the books, records and assets of every description of such bank, * * * and in his name shall sue for and collect all debts, dues and claims belonging to it, and upon the order of the court of competent jurisdiction may sell or compound all bad or doubtful debts, and, on a like order may sell all the real and personal property of such bank, * * * on such terms as the court shall direct; and may, if necessary to pay the debts of such bank, * * * sue for and enforce the individual liability of the stockholders. Such receiver shall pay all money received by him to the state treasurer to be held as a special deposit for the use and benefit of the creditors, subject to the order of the comptroller. * * * The comptroller, immediately upon appointing such receiver, shall serve notice upon the president, or upon any vice president or cashier, or upon any director or other person having the charge or management of any such bank, * * * informing him or them in such notice of his action in appointing such receiver, and notifying him or them or it that he would apply on a date therein named, * * * to some circuit judge having jurisdiction over the same, for an order confirming his action and the appointment of a receiver for such banking institution; and such bank, banking firm, or banking or trust company or corporation may, at such hearing, contest before such circuit judge the rightfulness and legality of such action of the comptroller in appointing such receiver."

The question for decision is whether the Florida receiver could sue to recover, in a court of this state, the assessment so made upon the stockholder in the Florida bank. It is well-settled law that a chancery receiver has no extraterritorial jurisdiction or power of official action, and cannot, as a matter of right, go into a foreign state or jurisdiction and there institute a suit for the recovery of demands due the person or corporation whose estate the receiver is administering; and the court appointing him cannot confer upon him authority to go into a foreign jurisdiction and take possession of the debtor's property; nor can the court appointing him, upon the principle of comity, give him the privilege to sue in a foreign court as the judgment creditor himself might have done where his debtor was amenable to the foreign tribunal to which the creditor resorted. Booth v. Clark, 17 How. 322, 15 L.Ed. 164; High on Receivers (4th Ed.) 271, § 239. A chancery receiver cannot sue even in the courts of the state in which he is appointed, unless authorized by an order of the court appointing him (Screven v. Clark, 48 Ga. 41), or unless where he is authorized so to do by statute ( Bank of N. A. v. Wheeler, 28 Conn. 433, 73 Am.Dec. 683).

But where the rights and powers of a chancery receiver are not derived solely from his appointment by the court of another state, and where he is invested by statute with the right of a quasi assignee or representative of creditors, he can sue upon claims and demands due the insolvent person whose estate he is administering, not strictly by virtue of his appointment, but by reason of his title and the power conferred upon him by such statute. When the statute expressly confers upon the receiver title, the chancery receiver can sue in the courts of the jurisdiction in which he is appointed and also in the courts of foreign jurisdiction. No one questions this doctrine. 23 R.C.L. 141, § 150. This principle likewise applies where by necessary implication a chancery or statutory receiver is vested by statute with title, or is made the representative of creditors; he being considered, under such circumstances, substantially an assignee. Under the National Bank Act (13 Stat. 114, § 50; U.S. Comp. St. § 9821), the Comptroller of the Currency was authorized, when any association refused to pay its circulating notes, to forthwith appoint a receiver who should "take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to such association, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders provided for by the twelfth section of this act." In construing this act the Supreme Court of the United States held that--

"A receiver of a national bank, appointed by the comptroller of the currency under the fiftieth section of the national banking act, may sue for demands due the bank in his own name as receiver, or in the name of the bank." Bank v. Kennedy, 17 Wall. 19, 21 L.Ed. 554.

The Florida statute was modeled after the national bank act, and we can look to the construction put upon the latter act to find the meaning of the Florida statute. In Bank v. Kennedy, supra, it was held that the power to take possession of the assets of the bank and to collect debts belonging to it vested the receiver with such title as would enable him to sue in his own name. The Florida statute is stronger than the national bank act. By this statute the receiver is expressly authorized to "sue for and collect all debts, dues, and claims belonging to" the bank. The power to "sue for and collect" such debts necessarily vested in the receiver title to them, made him the representative of creditors, and a quasi assignee of the insolvent bank for such purpose.

In Bernheimer v. Converse, 206 U.S. 516, 27 S.Ct. 755, 51 L.Ed. 1163, the Supreme Court of the United States held that--

"While a chancery receiver, having no authority other than that arising from his appointment, may

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