Miller v. Stock

Decision Date24 May 1933
Docket NumberNo. 5119.,5119.
PartiesMILLER v. STOCK et al.
CourtU.S. Court of Appeals — Third Circuit

William H. Speer and William E. Decker, both of Jersey City, N. J., for appellant.

Hugh S. Williamson, of New York City, and Edward A. Smarak, of Union City, N. J. (Breed, Abbott & Morgan, of New York City, of counsel), for appellee.

Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.

BUFFINGTON, Circuit Judge.

In the court below the receiver of a national bank brought suit against a shareholder and recovered judgment for an assessment made by the Comptroller of the Currency. The shareholder has appealed.

We are admonished by the Supreme Court that it is the duty of federal courts to act promptly in aiding the Comptroller in enforcing the liability of shareholders, that court saying in Kennedy v. Gibson et al., 8 Wall. 498, 505, 19 L. Ed. 476: "A speedy adjustment is necessary to the efficiency and utility of the law; the interests of the creditors require it, and it was the obvious policy and purpose of Congress to give it." And in Korbly v. Springfield Inst. for Savings, 245 U. S. 333, 38 S. Ct. 88, 90, 62 L. Ed. 326, this language is virtually repeated, the statutory provisions being referred to, as intended "to promote its plain purpose of expeditiously and justly winding up the affairs and paying the debts of such unfortunate institutions."

In pursuance thereof, we act with promptness in disposing of this case and no longer delaying the enforcement of the Comptroller's assessment made September 28, 1931.

That the making of the assessment is intrusted to the Comptroller, and that his action cannot be attacked collaterally, has been uniformly held by federal courts, following Kennedy v. Gibson et al., 8 Wall. 498, 505, 19 L. Ed. 476, where it is said: "It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him." In Deweese v. Smith (C. C. A.) 106 F. 438, 445, 66 L. R. A. 971, affirmed in 187 U. S. 637, 23 S. Ct. 845, 47 L. Ed. 344, it is said: "But this question is not open to litigation in this case. Under the acts of congress and the decisions of the courts to which reference has been made the comptroller of the currency constitutes a quasi judicial tribunal, to...

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4 cases
  • Moran v. Cobb
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 3, 1941
    ...Harper v. Moran, 1935, 64 App.D.C. 210, 76 F.2d 980. See also Kennedy v. Gibson, 1869, 8 Wall. 498, 19 L.Ed. 476; Miller v. Stock, 3 Cir., 1933, 65 F.2d 773, 90 A.L.R. 1061; Deweese v. Smith, 8 Cir., 1901, 106 F. 438, 66 L.R.A. 971, affirmed per curiam, 1902, 187 U.S. 637, 23 S.Ct. 845, 47 ......
  • Bacon v. Barber
    • United States
    • Vermont Supreme Court
    • May 2, 1939
    ...222, 26 S.Ct. at page 503, '50 L.Ed, at page 735, 5 Ann.Cas. 740; Stephens v. Hamilton, 7 Cir., 81 F.2d 324, 326; Miller v. Stock, 3 Cir., 65 F.2d 773, 774, 90 A.L.R. 1061. It is the duty of the receiver to enforce the individual liability of the stockholders. U.S.Rev.Stat. § 5234, sec. 192......
  • John D. Bacon, Receiver of the National Bank of Bellows Falls v. Richard Robbins Barber
    • United States
    • Vermont Supreme Court
    • May 2, 1939
    ... ...          February ... Term, 1939 ...          Action ... to Recover Assessment on National Bank Stock---1. Someone ... Liable for Assessment on Every Share under Statute---2 ... Liability Incident of Ownership---3. Assessment ... Conclusive---4 ... at page 222, 50 L.Ed. at page 735, 26 ... S.Ct. at page 503, 5 Ann. Cas. 740); Stephens v ... Hamilton, (7th Cir.) 81 F.2d 324, 326; ... Miller v. Stock, (3rd Cir.) 65 F.2d 773, ... 774, 90 A.L.R. 1061. It is the duty of the receiver to ... enforce the individual liability of the ... ...
  • Security Building & Loan Ass'n v. Spurlock
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 24, 1933
    ... ... Association"; designated the principal place of business of the corporation as Tucson, Ariz.; fixed the amount of the par value of its capital stock at $5,000,000 divided into 50,000 shares of $100 each, "which when issued shall be set apart as a fixed and permanent guaranteed capital"; provided ... ...

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