Futrall v. Ray, 11653.

• Decision Date: 13 May 1940
• Docket Number: No. 11653.,11653.
• Citation: 111 F.2d 695
• Parties: FUTRALL v. RAY.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F.2d 695 (1940)

FUTRALL v. RAY.

No. 11653.

Circuit Court of Appeals, Eighth Circuit.

May 13, 1940.

John C. Sheffield, of Helena, Ark., for appellant.

J. B. Daggett, of Marianna, Ark. (Daggett & Daggett and C. E. Daggett, all of Marianna, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellant as receiver of the Lee County National Bank, appointed by the Comptroller of the Currency, to recover an assessment made by the Comptroller of the Currency on the capital stock owned by the appellee in a closed national bank. The parties will be referred to as they appeared below.

Plaintiff's complaint was in conventional form, but there was attached to it as an exhibit the order made by the Comptroller of the Currency levying the assessment. The answer admitted all the allegations of the complaint and pleaded the three year Arkansas Statute of Limitations, Pope's Dig.Ark. § 8928. The lower court sustained the plea, and entered judgment of dismissal, and plaintiff has appealed.

An extended statement of facts would seem to be unnecessary because it is admitted that the only question involved is whether the Statute of Limitations began to run from November 6, 1935, the date the assessment was levied, or whether it did not begin to run until December 13, 1935, the date fixed by the Comptroller in his order for the payment of the assessment. There is no controversy about the applicable statute. Futrell v. Branson, 8 Cir., 104 F.2d 409.

The lower court held that the cause of action accrued on the date of the levying of the assessment, and hence, was barred by the three year Arkansas Statute of Limitations. There is no doubt that the liability of a stockholder in a national bank does not accrue until the assessment has been made by the Comptroller of the Currency. There were two assessments made by the Comptroller, the first bearing date July 6, 1934 for fifty per cent of the par value, and the second bearing date November 6, 1935, for an additional fifty per cent of the par value of the capital stock. It is admitted that the action to recover the first assessment is barred by the Statute of Limitations under the authority of Futrell v. Branson, supra. The order of assessment here under consideration, which was dated November 6, 1935, embodied a statement that the assessment made was "to be paid by them ratably on or before the 13th day of December, 1935, and I hereby make demand upon each and every one of them (the stockholders) for an additional fifty per cent of the par value of each and every share of the capital stock of said association owned by them, respectively, at the time of its failure; and I hereby direct A. F. Callaway, the Receiver heretofore appointed, to take all necessary proceedings, by suit or otherwise, to enforce to that extent the said individual liability of the said shareholders."

It is the contention of plaintiff that the cause of action which came into existence with the entry of this order of assessment did not accrue until December 13, 1935, the date named by the Comptroller as the time for payment of the assessment. It is conceded that if the statute did not begin to run until December 13, 1935, then the action was not barred, but that if it began to run on November 6, 1935, the date of making the assessment, then it was barred. The Statute of Limitations began to run from the time the cause of action accrued, and this, we think, was the date on which the assessment was made. Pufahl v. Estate of Parks, 299 U. S. 217, 57 S.Ct. 151, 81 L.Ed. 133; Armstrong v. McAdams, 8 Cir., 46 F.2d 931; Coffey v. Fisher, 6 Cir., 100 F.2d 51.

In Armstrong v. McAdams, supra, this identical question was before us. It is urged, however, by plaintiff that there was no statement in the assessment there considered of a future payable date, and that the levy on its face was made payable immediately. While the opinion does not disclose the wording of the order, a reference to the original record discloses that, as in the case at bar, the order of assessment fixed a date for payment. The assessment was dated August 10, 1926, but was by the order required to be paid on or before November 16, 1926. This court there said: "The cause of action accrued August 10, 1926, the date the assessment was made by the Comptroller of the Currency. Suit was therefore instituted more than three years after the cause of action accrued * * *."

But we think the question has been...