Corker v. Soper, 6119.

• Decision Date: 30 October 1931
• Docket Number: No. 6119.,6119.
• Citation: 53 F.2d 190
• Parties: CORKER v. SOPER.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F.2d 190 (1931)

CORKER v. SOPER.

No. 6119.

Circuit Court of Appeals, Fifth Circuit.

October 30, 1931.

Blair Foster and Geo. L. Bell, Jr., both of Atlanta, Ga., for appellant.

J. S. Adams, of Dublin, Ga., and Scott Russell, of Macon, Ga., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

This appeal from a decree adjudging appellant to be the beneficial owner of 156 shares of stock of the First National Bank of Dublin, and as such liable to assessment on account of them, presents the single question whether the facts do not require a contrary holding. Though there are allegations in the bill that the stock was placed in the name of Laurens Investment Company, Inc., fraudulently for the purpose of avoiding liability at a time when the bank was insolvent or in danger of becoming so, these allegations were at the trial abandoned, and here, as there, it was admitted that, if the record ownership is the real ownership, there is no liability.

The suit was brought against Laurens Investment Company as the record owner of 184½ shares; against Corker as the real owner of 156½ shares, Mrs. Corker as the real owner of 28 shares, and against Corker and his two sons, the sole stockholders of the Laurens Company, upon the theory that it was not a reality but a fiction, that, the efforts at incorporation having failed, the stockholders were liable as partners.

Without opinion or findings, the trial judge gave judgment against the Laurens Company for the whole assessment, and against Corker to the extent of 156½ shares. He denied judgment against Mrs. Corker and their two sons. The stipulation on which the case was tried, together with the oral testimony, show that the First National Bank of Dublin was organized in 1902, and that it suspended payment in September, 1928; that F. G. Corker was during all of this time its president; that in December, 1927, its capital structure having become impaired through frozen loans, upon the demand of the Comptroller of the Currency that the stockholders of the bank pay additional capital in, it was decided that each shareholder would surrender for cancellation one-half of his holdings, and that new stock to the amount of $100,000 would be at once issued to take the place of that surrendered.

Corker, though still president of the bank, was not active, being then, and having for many years been, a resident of Atlanta, and though he, with other directors, underwrote the whole of the new subscription, the matter of placing the new stock was handled by others.

Corker made it plain to the committee that, while he had no apprehension about the bank, felt that it was solvent, and would continue to be, on account of a security loss he had sustained, and on account of his age and health, he did not want to subscribe personally for any of the new stock and subject himself to the probability of an assessment on account of owning it. He stated to them that he would subscribe for 150 shares of the stock, not for himself, but for a corporation which he was organizing, and he subscribed for the stock as "F. G. Corker, Agent."

On January 9, 1928, this stock was paid for with $15,000 borrowed by appellant from another bank upon his personal note, secured by the 150 shares of stock, to which was attached a blank power of attorney, undated, signed "Laurens Investment Company, Inc. by F. G. Corker," in whose name, though that company had not yet been organized, the stock had been issued. On the same day a 4 per cent. dividend was declared, and checks were issued by the bank to Laurens, to Corker, and to Mrs. Corker. All of these checks, indorsed to the credit of F. G. Corker, were deposited in appellant's personal account.

The facts as to the Laurens Company and its organization are: On February 3d the charter of the Laurens Investment Company, Inc., on a petition filed December 27, 1927, was issued, with an authorized capital stock of $10, Corker and his two sons incorporators. On the next day the capital stock was subscribed for, by-laws were adopted, the subscription of F. G. Corker as agent for the Laurens Company to 150 shares of the Dublin Bank stock was ratified, and it was resolved that the Laurens Company purchase Mrs. Corker's stock in the bank, and that of appellant, except 21 shares which he retained to qualify him as a director in the bank; and that it give to appellant and his wife notes dated back to January 5, 1928, bearing interest at 8 per cent., representing the par value of 156½ and 28 shares respectively, making up the total of 184½ shares which stood in the name of the Laurens Company. The January dividends already paid were credited on these notes. No other corporate action was ever taken by the Laurens...