Davis' Estate v. Watkins

• Decision Date: 05 October 1898
• Citation: 56 Neb. 288,76 N.W. 575
• Parties: DAVIS' ESTATE ET AL. v. WATKINS.
• Court: Nebraska Supreme Court

56 Neb. 288

76 N.W. 575

DAVIS' ESTATE ET AL.

v.WATKINS.

Supreme Court of Nebraska.

Oct. 5, 1898.

Syllabus by the Court.

1. An assessment levied by the comptroller of the currency on a stockholder of a national bank draws interest from the date such assessment is made payable.

2. The commission or written appointment of a receiver of a national bank issued by the comptroller of the currency, signed by him, and attested with his seal of office, is a certificate, within the meaning of section 884, Rev. St. U. S.

3. Such a certificate proves itself, and is admissible in evidence without extraneous proof of its genuineness.

4. The courts of this state take judicial notice of the acts of congress providing for the appointment of a deputy comptroller of the currency, and defining his powers and duties.

5. In a suit against a stockholder of a national bank to recover assessments levied against him by the comptroller of the currency, it will be presumed that the stock certificate bearing the corporate seal of the bank was issued and signed by the officer having authority so to do.

6. In such a suit, the validity of the incorporation of the bank is a collateral issue, and the stockholder is estopped from asserting that it is not a corporation de jure.

Error to district court, Douglas county; Keysor, Judge.

Action by Albert Watkins, receiver of the First National Bank of Ponca, Neb., against the estate of Oscar F. Davis and the administrators thereof, to recover on stockholder's liability. From a judgment for plaintiff, the administrators bring error. Conditionally affirmed.Kennedy & Learned, for plaintiffs in error.

Tibbets Bros., Morey & Ferris, and Bradley & De Lamater, for defendant in error.

RAGAN, C.

Oscar F. Davis owned 50 shares, of $100 each, of the capital stock of the First National Bank of Ponca, Neb. The bank became insolvent. The comptroller of the currency of the United States appointed Albert Watkins receiver of said bank, and levied an assessment of 100 per cent. upon the stockholders of said corporation. Davis died, and the receiver filed the claim against his estate in the county (probate) court of Dixon county. From the allowance of that claim by the county (probate) court, the administrators of Davis appealed to the district court of said county, where the trial resulted in a verdict and judgment in favor of the receiver, and the administrators of Davis bring that judgment here for review on error.

1. The district court awarded the receiver judgment for $5,000, with 7 per cent. interest thereon from the 12th day of July, 1893, the date on which the comptroller of the currency made an assessment upon the stockholders. The first complaint of the administrators is as to the allowance of this interest. Their contention is that the estate is not liable for interest on this claim until it was allowed by the county (probate) court, May 5, 1894. But the assessment made by the comptroller was payable on or before the 12th day of August, 1893, and we think that it drew interest from that date. In Casey v. Galli, 94 U. S. 673, it was held that the assessment drew interest from the date it was made; and the same ruling was made in Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. 246. In each of those cases it appears that the assessment was payable on the date it was made. Here the assessment was payable 30 days after it was made, and, within the principle of the cases cited, would draw interest from the time it was payable. The judgment of the district court is for $29.16, or one month's interest too much.

2. The second argument is that the court erred in receiving in evidence what is known in the record as “Exhibit 1,” being the commission or written appointment of Watkins as receiver. The document was signed “Oliver P. Tucker, Deputy and Acting Comptroller of the Currency,” and was attested by the seal of office of the comptroller. The argument is that no foundation was laid for the introduction in evidence of this commission, as there was no proof of the genuineness of Tucker's signature, and no evidence that he had any authority to execute such an instrument. Section 884, Rev. St. U. S., provides: “Every certificate, assignment, and conveyance executed by the comptroller of the currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts, and all copies of papers in his office, certified by him and authenticated...