Continental Nat. Bank of Memphis, Tenn., v. Buford

• Decision Date: 12 March 1902
• Docket Number: 1,621.
• Citation: 114 F. 290
• Parties: CONTINENTAL NAT. BANK OF MEMPHIS, TENN., v. BUFORD.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 290

CONTINENTAL NAT. BANK OF MEMPHIS, TENN., v. BUFORD.

No. 1,621.

United States Court of Appeals, Eighth Circuit.

March 12, 1902

The Bank of Mammoth Springs was an Arkansas corporation, located at Mammoth Springs, in that state. On the 9th day of June 1891, G. C. Buford, the defendant in error and defendant below, was elected president of the bank, and continued to be such until the 9th day of June, 1896. A statute of Arkansas under which the bank was organized, and which was in force during the period mentioned, contains the following provisions:

'Sec 1337. The president and secretary of every corporation organized under the provisions of this act, shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained on the first day of January or of July next preceding the time of making such certificate, in the following particulars, viz.: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the names and number of shares of each stockholder; which certificate shall be deposited on or before the 15th day of February or of August with the county court clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose.'

'Sec. 1346. The certificates required by sections 1334, 1337, 1343 and 1344, except certificates of transfers of stock, shall be made under oath or affirmation by the person subscribing the same; and if any person shall knowingly swear or affirm falsely as to any material facts, he shall be deemed guilty of perjury, and be punished accordingly.

'Sec. 1347. If the president and secretary of any such corporation shall neglect or refuse to comply with the provisions of section 1337, and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of such neglect or refusal.'

Sand. & H. Dig. Ark.

This action was commenced July 21, 1900. The complaint alleges that during the whole time the defendant was president of the bank he neglected to comply with the requirements of the foregoing provisions of the statute by making, swearing to, and depositing the certificate required thereby. It further alleges: 'That on September 6, 1894, said Bank of Mammoth Springs became indebted to plaintiff in the sum of $2,500 by note for that amount due November 8, 1894. That on said date said note was renewed, and upon maturity of said renewal it was likewise renewed. These renewals continued from time to time, with occasional payments at some of the times of renewal, until May 20, 1897, when said Bank of Mammoth Springs, being then indebted to plaintiff in the sum of $1,150 as balance due on said original indebtedness, executed to the plaintiff its note for that amount due and payable three months after date. That on May 3, 1894, said Bank of Mammoth Springs was also indebted to the plaintiff in the sum of $5,000 by note, which, by the same process of renewals and part payments as above stated in regard to the first note, was reduced on May 2, 1897, to $3,500, for which said Bank of Mammoth Springs executed to plaintiff its note for said amount, due ninety days after date. The defendant demurred to the complaint on the ground that it appeared on the face of the complaint that the cause of action was barred by the statute of limitations. The circuit court sustained the demurrer, and, the plaintiff declining to plead further, final judgment was rendered for the defendant, and the plaintiff sued out this writ of error. The opinion of the circuit court is reported in 107 F. 188.

Rhea P. Cary, for plaintiff in error.

Robert Neill (Davidson & Meeks, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

It is settled by the decision of the supreme court of Arkansas in the case of Bank v. Walsh, 68 Ark. 21, 59 S.W. 952 that the statute on which this action is founded is a remedial statute, and imposes 'a statutory liability, and not a penalty,' and that the three-years statute of limitations applies to actions founded thereon. The single question left for our consideration is, when did the plaintiff's cause...