Citizens’ Nat. Bank of Kingman v. George F. Berry & Co.

• Decision Date: 06 July 1894
• Citation: 37 P. 131,53 Kan. 696
• Parties: CITIZENS’ NAT. BANK OF K INGMAN v. George F. Berry & Co. et al.
• Court: Kansas Supreme Court

37 P. 131

53 Kan. 696

CITIZENS’ NAT. BANK OF K INGMAN v. George F. Berry & Co. et al.

Supreme Court of Kansas

July 6, 1894

Syllabus

The president of a banking corporation has the power to employ counsel and manage the litigation of the bank, in the absence of any order of the board of directors depriving him of such power.

Error from district court, Kingman county; S. W. Leslie, Judge.

Action by George F. Berry & Co. against the Citizens’ National Bank of Kingman. Judgment for plaintiffs, and defendant brings error. Reversed.

S. S Ashbaugh and James Steck, for plaintiff in error.

Hay &amp Hay, for defendants in error.

OPINION

ALLEN, J.

George F. Berry & Co. brought suit against the Citizens’ National Bank of Kingman to recover certain sums of money alleged by them to have been paid to the bank as usurious interest, and the penalty provided by the national banking law therefor. An answer containing merely a general denial was filed by Lydecker & Cooper on behalf of the defendant. A demurrer alleging various grounds was filed by R. W. Hodgson, as president. The attorney for the plaintiffs moved to strike from the files Hodgson’s demurrer, and Lydecker & Cooper moved for an order requiring Hodgson to show by what authority he appeared for the bank. Hodgson also moved for an order requiring Lydecker & Cooper to show by what authority they appeared. On this motion, affidavits were introduced from which it appears that Hodgson was president of the bank, and the owner of $30,800 of the capital stock, the total amount of which was $50,000; that the corporation had gone into voluntary liquidation in December, 1888; that Lydecker & Cooper had been employed as attorneys of the bank by the board of directors, and had never been discharged as such; and that Lydecker was one of the directors. On hearing these motions, the court ordered the demurrer filed by Hodgson stricken from the files, and sustained the right of Lydecker & Cooper to represent the bank. Thereupon Messrs. Ashbaugh & Steck asked leave to file an answer on behalf of the president of the bank, under employment from him, setting up the fact that Berry and Jett, the plaintiffs, were directors in the bank at the time of the alleged usurious transaction, and also the facts with reference to the bank having gone into voluntary liquidation, and other matters of defense. The court refused to consider such answer, and held that Hodgson had no...