Mann v. Kleisdorff

• Decision Date: 03 January 1927
• Docket Number: No. 4844.,4844.
• Citation: 16 F.2d 997
• Parties: MANN v. KLEISDORFF.
• Court: U.S. Court of Appeals — Fifth Circuit

16 F.2d 997 (1927)

MANN v. KLEISDORFF.

No. 4844.

Circuit Court of Appeals, Fifth Circuit.

January 3, 1927.

William C. Martin, of Natchez, Miss., for plaintiff in error.

W. A. Geisenberger, of Natchez, Miss., John Brunini, of Vicksburg, Miss. (Brunini & Hirsch, of Vicksburg, Miss., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This was a suit in the federal District Court of Mississippi to recover an amount equal to the par value of stock held by a stockholder in a failed national bank, upon an assessment levied by the Comptroller of the Currency pursuant to sections 5151, 5152, and 5234 of the Revised Statutes (Comp. St. §§ 9690, 9821). The declaration of the plaintiff bank receiver alleged the making of the assessment against the stockholder during her lifetime, but it was not until a year after her death that suit was brought against her executrix, the defendant.

It is provided by statute in Mississippi that it shall be the duty of an executor or administrator to publish a notice requiring all claims against the estate represented by him to be probated and registered within six months, and that all claims not so probated and registered shall be barred. Hemingway's Code Supp. 1921, §§ 1771, 1775. The defendant executrix, relying upon these statutory provisions, filed a plea in bar of the suit, setting up the giving of the notice and plaintiff's failure to probate or register his claim within the time required, which had expired before suit was brought. The District Court sustained this plea as against a demurrer, and, plaintiff declining to join issue on it or to plead further, dismissed the suit.

On this writ of error plaintiff contends, first, that the nonclaim statute of Mississippi is inapplicable; and, secondly, that it is in conflict with a federal statute, R. S. § 5152, which provides that the estates and funds in the hands of executors or administrators "shall be liable in like manner and to the same extent" as the testator or intestate would be if living.

The liability sought to be enforced dates from the assessment made by the Comptroller of the Currency. Rankin v. Barton, 199 U. S. 228, 26 S. Ct. 29, 50 L. Ed. 163. Under R. S. § 721 (Comp. St. § 1538), there being no federal statute, the law of Mississippi is to be regarded as the rule of decision in this case, and the liability of a stockholder of a national bank, or his executor, is subject to the state statute of limitations. Campbell v. Haverhill, 155 U. S. 610, 15 S. Ct. 217, 39 L. Ed. 280; McDonald v. Thompson, 184 U. S. 71, 22 S. Ct. 297, 46 L. Ed. 437. It has been held by the Supreme Court of Mississippi that the nonclaim statute in question is a statute of limitations. Miller v. Trustees of Jefferson College, 5 Smedes & M. (Miss.) 651; Cohea v. Commissioners, 7 Smedes & M. (Miss.)...