Jackson v. Chemical Nat. Bank

• Decision Date: 24 March 1927
• Docket Number: 3 Div. 789
• Citation: 215 Ala. 538,112 So. 105
• Parties: JACKSON, State Superintendent of Banks, v. CHEMICAL NAT. BANK.
• Court: Alabama Supreme Court

112 So. 105

215 Ala. 538

JACKSON, State Superintendent of Banks, v. CHEMICAL NAT. BANK.

3 Div. 789

Supreme Court of Alabama

March 24, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

In the suit of the Chemical National Bank of New York against A.E Jackson, as State Superintendent of Banks, in charge of the Merchants' Bank of Montgomery, defendant moves for a reference to the register to ascertain the amount due to complainant as a creditor of the Merchants' Bank, after allowance of proper credits. From the decree, defendant appeals. Affirmed in part, and in part reversed and remanded.

See also, Montgomery v. Chemical Nat. Bank of New York, 209 Ala. 585, 96 So. 898, and Chemical Nat. Bank v Jackson, 214 Ala. 458, 108 So. 53.

Steiner, Crum & Weil and Horace Stringfellow, all of Montgomery, for appellant.

Rushton, Crenshaw & Rushton, of Montgomery, for appellee.

THOMAS J.

Discussions of phases of this case are reported as Montgomery v. Chemical Nat. Bank, 209 Ala. 585, 96 So. 898, and Chemical Nat. Bank v. Jackson, 214 Ala. 458, 108 So. 53.

In Coffey v. Gay, 191 Ala. 137, 67 So. 681, L.R.A.1915D, 802, the bank had been placed in the hands of a receiver by order of the chancery court; held that, though the receiver was authorized to institute action, the same court having decided against the claim, said receiver cannot appeal without consent. And such was the effect of the decision in Cobbs, Receiver, v. Vizard Investment Co., 182 Ala. 372, 62 So. 730, Ann.Cas.1915D, 801. In Walker, Supt., v. Mutual Alliance Trust Co., 196 Ala. 154, 158, 71 So. 697, where it is declared that the superintendent of banks was proceeded against as a quasi trustee or receiver of the court administering the trust, that his activities can be controlled by that court within proper bounds.

The right of those standing in trust relation (trustees, executors, and administrators) to appeal, as a party aggrieved, was given a general discussion in Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L.R.A. 745, and a difference of opinion developed. In this jurisdiction no such doubt is entertained of the right of executors and administrators to appeal, under our statute giving the right on application of either party or his personal representative. Sections 6078, 6079, 6088, Code of 1923.

In Bosworth v. Terminal R. Ass'n, 174 U.S. 182, 19 Sup.Ct. 625, 43 L.Ed. 941, Mr. Justice Brewer declared generally: (1) A receiver may defend, both in the court appointing him and appeal, the estate in his possession against all claims which are antagonistic to the rights of both parties to the suit. Wiley Fert. Co. v. Carroll, 202 Ala. 335, 80 So. 417. (2) He may defend the estate against all claims which are antagonistic to the rights of either party to the suit, subject to the limitation that he may not in such defense question any order or decree of the court distributing burdens or apportioning rights between the parties to the suit, or any order or decree "resting upon the discretion of the court appointing him." Cobbs, Receiver, v. Vizard Co., 182 Ala. 372, 62 So. 730, Ann.Cas.1915D, 801; Wiley Fert. Co. v. Carroll, 202 Ala. 335, 80 So. 417. (3) Neither can such officer of the court question any subsequent order or decree of the court "distributing the estate in his hands between the parties to the suit." Wiley Fert. Co. v. Carroll, supra. That an intervener does not come within this last-stated rule as to the parties to the suit. (4) A receiver may appeal from an order or decree which "affects his personal rights, provided it is not an order resting in the discretion of the court." Thus he may not appeal from an order discharging or removing him, or directing him in the administration of the estate, for such orders delay or interfere with the due and orderly administration of the estate; and may appeal from an order disallowing him fees or commissions (Clifford v. Montgomery, 202 Ala. 609, 81 So. 551), for such a matter is not purely of discretion of the court and does not delay or interfere with the orderly administration of the estate. (5) The right of the receiver to appeal "from an allowance of a claim against the estate does not necessarily fail when the receivership is terminated to the extent of surrendering the property in the possession of the receiver." See, also, general authorities collected in L.R.A.1915D, 802 et seq. The decision in Sterrett v. Second National Bank, 248 U.S. 73, 39 S.Ct. 27, 63 L.Ed. 135, 137, under sections 3509, 3511, 3512, 3560, Code of Ala.1907, is not to the contrary.

The provisions of statute creating the banking department are Gen.Acts 1911, pp. 50-89, as amended by Gen.Acts 1915, pp. 88-103, and suits for the collection of debts of a bank in the course of liquidation held properly brought in the name of the superintendent of banks in his official capacity ( Slaughter v. Green, 205 Ala. 250, 87 So. 358), and to maintain suits against such official in his representative capacity, in a proper case (State v. Jefferson Co. Bank, 200 Ala. 287, 76 So. 53; Walker, Supt., v. Mutual Alliance Trust Co., 196 Ala. 154, 157, 71 So. 697; Green v. McCord, 204 Ala. 364, 85 So. 752).

On former appeal in this case, Montgomery v. Chemical Nat. Bank, 209 Ala. 585, 96 So. 898, the bill was by the Chemical Nat. Bank against the superintendent of banks. It is declared of the Banking Act (Acts 1911, p. 50) that:

It "indicates that, when the superintendent takes charge of the affairs of an insolvent bank, he becomes a statutory assignee of its assets, a receiver with such powers and duties as are usually incident to receiverships, and hence he takes its property subject to all equities which exist when he takes possession. 7 C.J. 735."

The authorities cited do not deny the right of the superintendent of banks to appeal without the consent of the court, in which, as such official, he is a party litigant. That state official is the appointee of the Governor, by and with the consent of the Senate, must duly qualify, is removed from office for reasons specified as neglect, malfeasance, misfeasance, corruption, incompetence, unfitness, etc., and offenses involving moral turpitude, etc., committed under color of office, "by the same proceedings as is provided for the removal of sheriffs from office." Acts 1911, p. 52. He is required to have a seal of office, has authority to administer oaths, to inspect and require state banks to keep unimpaired their capital stock, report to directors of banks with request, and by and with the consent of a majority of the "banking board," for causes stated in the act, "take possession of the property and business of said" corporation or individual banker, until said institution shall be permitted under the law to "resume business or its affairs be finally liquidated," as provided by the law.

It is further provided by the act (section 10, pp. 61, 62):

"After the superintendent has taken possession of a bank or business of an individual banker, the superintendent may permit such bank or individual banker to resume business upon such condition as may be approved by him, including an observance of all the requirements of law, and making good all deficits in the previous observances of law. Upon taking possession of any of the property and business of any bank or individual banker, the superintendent is authorized to collect moneys due to such corporation or individual banker and to do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof as hereinafter provided. The superintendent shall collect all debts due and claims belonging to the bank, and the superintendent, by making application to the circuit or chancery court in the county in which the bank is located, may procure an order to sell or compound all bad or doubtful debts, and on like order may sell all real and personal property of such corporation or individual banker on such terms as the court shall direct, but on any such court proceedings, the bank or individual banker shall be made a party by proper service issued from the court, and the hearing of any such application or petition of the superintendent may be had at any time after the bank or individual banker has had five days' notice of the application. Whenever any corporation doing a banking business or individual banker of whose property and business the superintendent has taken possession of as aforesaid deems itself aggrieved thereby, it may at any time within ten days after taking such possession, apply to the chancery court or other court of like jurisdiction in the county where the principal office of such bank or individual banker is located, to enjoin further proceedings by the superintendent; and the court, after citing the superintendent to show cause why further proceedings should not be enjoined and hearing the allegations and proof of the parties and determining the facts, may upon the merits dismiss such application or enjoin the superintendent from further proceedings and direct him to surrender such business and property to such corporation or individual banker; and any such application for injunction may be heard at any time after one day's notice from the time of service on the superintendent, in the discretion of the court."

He is empowered to appoint agents, counsel, and assistants to aid in "liquidation and distribution," as the "superintendent himself could in person do and perform," to pass upon claims against banks being liquidated and give notice thereof, to defend action upon claims duly brought to the court having jurisdiction of the affairs of the bank by the claimant (page 63), to take possession of property and assets of such "corporation or individual banker," make...