Mccallum v. Twiggs County Bank, No. 7073.

• Court: Supreme Court of Georgia
• Writing for the Court: RUSSELL
• Citation: 158 S.E. 302,172 Ga. 591
• Parties: McCALLUM. v. TWIGGS COUNTY BANK.
• Docket Number: No. 7073.
• Decision Date: 16 April 1931

172 Ga. 591

158 S.E. 302

McCALLUM.
v.
TWIGGS COUNTY BANK.

No. 7073.

Supreme Court of Georgia.

April 16, 1931.

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Syllabus by the Court.

The provisions of section 46 of article 19 of the Banking Act of 1919 (Ga. L. 1919, pp. 135, 210) are substantially similar to those of section 5242 of the Revised Statutes of the United States (USCA title 12, c. 2, section 91); and the construction placed by the Supreme Court of the United States upon questions presented to this court is entitled to great weight,

Syllabus by the Court.

Under the rulings of the Supreme Court of the United States, construing section 5242 of the Revised Statutes of the United States (12 USCA § 91), in McDonald v. Chemical National Bank, 174 U. S. 610, 19 S. Ct. 787, 43 L. Ed. 1106, the mere fact that a bank is insolvent, and that this fact known to its officers and others charged with the duty of administering its affairs, will not render payment of a check of a depositor null and void, so as to authorize the recovery of the payment by the superintendent of banks, if such payment was made in the ordinary course of busi-

[158 S.E. 303]

ness and "an hour before the doors were closed, " unless there is evidence to justify the inference that the particular payment in question was made in contemplation of insolvency or with a view to prefer the particular depositor. Consequently, a petition which alleged a payment to a depositor sued as defendant, with a view to prevent the application of its assets in the manner prescribed by the banking act, or with a view to the preference of one creditor over another, although such payment was made within three months prior to the failure of the bank, is insufficient to render such payment null and void without an allegation of facts showing that such payment was made, not in the due course of business, but with a view to a preference.

Syllabus by the Court.

The petition in the instant case was properly dismissed upon demurrer, and the Court of Appeals erred in reversing the judgment of the trial court.

Certiorari from Court of Appeals.

Suit by the Twiggs County Bank, by A. B. Mobley, superintendent, etc., against J. A. McCallum. Judgment for defendant was reversed by the Court of Appeals (39 Ga. App. 306, 147 S. E. 129), and defendant brings certiorari.

Reversed.

J. D. Shannon, of Jeffersonville, and L. D. Moore, of Macon, for plaintiff in error.

Jones, Jones, Johnston & Russell, of Macon, for defendant in error.

RUSSELL, C. J.

On July 14, 1926, while the Twiggs County Bank (a banking corporation under the laws of Georgia) was open and transacting business, one of its depositors, J. A. McCallum, who had on deposit $860, withdrew that amount from the bank by check. On the same day the institution was closed and taken in charge by the superintendent; of banks. Suit was instituted by the bank, through the superintendent of banks in charge thereof, to recover this amount from McCallum, as withdrawn at a time when the bank was insolvent, and with a view of preventing application of its assets in the manner prescribed in the banking laws, or with a view of giving a preference to one creditor over another. It was alleged that "the assets of said bank, together with the assessment made upon its stockholders, will not be sufficient to pay the creditors and depositors in full, and the payment of the said money to the said J. A. McCallum thus gave a preference to the said J. A. McCallum over its other creditors." The defendant demurred generally, because the petition set forth no cause of action in the plaintiff; because the facts alleged did not entitle plaintiff to recover; and because there was no allegation of any acts on part of the bank, or circumstances, showing an intent by the bank to create a preference in favor of the defendant, and no allegation of knowledge on part of defendant of insolvency of the bank. The judge sustained the general demurrer and dismissed the petition, and the plaintiff excepted. The Court of Appeals, 39 Ga. App. 306, 147 S. E. 129, reversed the judgment, ruling as follows: "Section 2360 of the Civil Code of 1910 is superseded by article 19, § 46, of the Banking Act, approved August 16, 1919 (Ga. L. 1919, p. 135 et seq.). Under this section of the Banking Act tie payment by the bank of money which is on general deposit to the depositor is the payment of assets of the bank to a creditor; and when made after the insolvency of the bank, and with a view by the bank of preventing the application of the assets in the manner prescribed by the banking act, or with a view by the bank of preferring the depositor over other creditors, the payment is, under the terms of the act, 'null and void, ' provided the payment is made within three months prior to the failure of the bank. It is not essential to the invalidity of the payment that at the time of payment the depositor to whom the money is paid shall have knowledge that the bank is insolvent."

In the petition for certiorari, complaint is made of various statements made in the opinion of the Court of Appeals; but the concluding division of the petition avers that the real question involved is this: "Can a payment made to a depositor of the bank while its doors are open and made in the ordinary course of its business be recovered back at the...