English v. Gamble

• Decision Date: 27 April 1928
• Docket Number: No. 7827.,7827.
• Citation: 26 F.2d 28
• Parties: ENGLISH et al. v. GAMBLE.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 28 (1928)

ENGLISH et al. v. GAMBLE.

No. 7827.

Circuit Court of Appeals, Eighth Circuit.

April 27, 1928.

W. C. Stevens and J. H. Cline, both of Lawton, Okl., for plaintiffs in error.

Dudley B. Madden and Walter Hubbell, both of Walters, Okl., for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge.

The receiver of the First National Bank of Devol, as plaintiff in the court below, for whom Gamble, a subsequent receiver, was later substituted, brought this action against the plaintiffs in error, there defendants, to recover the statutory assessment upon stock alleged to have been owned by them in said bank at the time it became defunct. The defendants first demurred, and, upon such demurrers being overruled, filed their separate answers, which in turn were followed by replies, and upon the issues thus joined the cause was tried to the court without the intervention of a jury upon written stipulation of the parties.

In brief, the following situation was disclosed by the evidence: Some time in 1924, owing to the bank being in a depressed condition as to its finances, an assessment amounting to $25,000 was made among its stockholders to which a certain portion of such stockholders did not respond; such uncollected assessments amounting to $9,400. Upon demand of the office of the Comptroller of the Currency through the regular channels it was required of the officials of the bank that this sum should be placed in the bank or the institution would not be allowed to open its doors. The defendants, stockholders and also directors of the bank, raised this sum among themselves and deposited it in the bank in escrow in order to satisfy the requirements of the National Banking Department. An attempt was then made by the bank to close out the stock which was in default on account of the unpaid assessments, and upon the first attempt no sale resulted. Appeal for advice was then made to the Comptroller, who advised the cashier of the bank by letter, in substance, that the defaulted stock must be sold out, and suggested that said stock be noticed for sale by advertisements in a local paper for 30 days, and, in the event no other bids were received, the amount held in escrow in the bank which was put up by the directors to cover the unpaid delinquency in the assessment might be applied to the purchase of such stock, a trustee appointed to represent the purchasers, the stock reissued upon the books in the name of such trustee, the old stock thereupon canceled and notice given to the old shareholders of such cancellation. After consulting with the directors, defendants here, this plan of procedure was agreed upon and followed. The sale was conducted upon published notice at which, no other bidders being present, the stock was bid in by the cashier for the...