Mobley v. Hibernia Bank & Trust Co

• Decision Date: 07 March 1932
• Docket Number: 13,981
• Citation: 140 So. 251,19 La.App. 414
• Parties: MOBLEY, SUPERINTENDENT OF BANKS, v. HIBERNIA BANK & TRUST CO
• Court: Court of Appeal of Louisiana — District of US

140 So. 251

19 La.App. 414

MOBLEY, SUPERINTENDENT OF BANKS, v. HIBERNIA BANK & TRUST CO

No. 13,981

Court of Appeals of Louisiana, Orleans

March 7, 1932

Appeal from the Civil District Court, Parish of Orleans. Hon. Mark M. Boatner, Judge.

Action by B. Mobley, Superintendent of Banks of the State of Georgia, against Hibernia Bank & Trust Company.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Arthur J. O'Keefe, Jr., Leon Davidson and Walter W. Wright, of New Orleans, attorneys for plaintiff, appellant.

Quintero & Ritter, Henry & Cooper and A. M. Suthon, of New Orleans attorneys for defendant, appellee.

OPINION

HIGGINS, J.

A. B Mobley, as superintendent of banks of the state of Georgia, brings this action against the Hibernia Bank & Trust Company, as tutor of the minor William W. Wilkins, Jr., to recover the sum of $ 1,000 and for recognition and maintenance of an assessment he levied against the minor as the owner of certain bank stock, and the execution he issued thereunder.

The petition alleges that the minor's mother was the owner of ten shares of the capital stock of the Citizens' Bank of Waynesboro, Georgia, having a par value of $ 100 each; that the minor, upon the death of his mother, was recognized as her sole and only heir by the civil district court of New Orleans, and thereby became the owner of the stock; that the Citizens' Bank of Waynesboro, Georgia, is insolvent, and that plaintiff, as superintendent of banks of the state of Georgia, has full charge and control of the liquidation of its affairs; that, in accordance with the laws of the state of Georgia, particularly the Banking Statute of the state, approved August 16, 1919 (Laws Ga. 1919, p. 135), and the amendments thereof approved August 14, 1920 (Laws Ga. 1920, p. 102), and August 26, 1925 (Laws Ga. 1925, p. 119), plaintiff, as superintendent of banks of the state of Georgia, levied a 100 per cent. assessment of the par value of the stock for the benefit of the depositors and issued execution against the Hibernia Bank & Trust Company, as tutor of the minor, for the sum of $ 1,000, with 7 per cent interest from February 1, 1930; and that copies of the notice of assessment and the execution were annexed to and made a part of the petition.

Defendant excepted to plaintiff's petition on the ground "that the plaintiff herein is without any right or authority or capacity to stand in judgment as plaintiff herein or to prosecute this suit" because he is without extraterritorial power.

There was judgment in favor of defendant maintaining the exception and dismissing the suit and plaintiff appealed.

At the outset we note that plaintiff claims the right to bring this suit solely and only by virtue of the office which he holds as superintendent of banks of the state of Georgia under its banking laws.

Now it is well settled that executors, administrators and receivers appointed by courts of other states, without bringing ancillary proceedings in the courts of this state, have no power of administration in this state and cannot maintain an action or stand in judgment in our state courts. Henderson's Heirs v. Rost, 15 La.Ann. 405; Burbank v. Payne, 17 La.Ann. 15, 87 Am. Dec. 513; Mason, Administrator, v. Executors of Haller Nutt, 19 La.Ann. 41; Agee v. Brent, 132 La. 821, 61 So. 837; Hale v. Allinson, 188 U.S. 56, 23 S.Ct. 244, 47 L.Ed. 380; Sterrett v. Second National Bank, 248 U.S. 73, 39 S.Ct. 27, 63 L.Ed. 135; McCullough v. Scott, 182 N.C. 865, 109 S.E. 789; Finney v. Guy, 189 U.S. 335, 23 S.Ct. 558, 47 L.Ed. 839.

But it is contended by plaintiff that the superintendent of banks of the state of Georgia is more than an ordinary administrator, executor, or receiver who are merely officers of the court without title to the assets which they administer, because he is a quasi assignee for the benefit of the depositors of the insolvent bank and has title to the funds as such.

The general law on the subject is stated in 46 C. J., sec. 288, page 1032, verbo "Officers," as follows:

"Extraterritorial Power. When the law confers upon a person powers that he, as a natural person, does not possess, that power cannot accompany his person beyond the bounds of the sovereignty which has conferred the power, and although the Legislature may require certain official acts to be done beyond the state's limits, such acts are done by its express permission and the power cannot be implied." See, also, R. C. L., volume 11, page 432.

In the case of Moore v. Mitchell, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673, the Supreme Court of the United States in effect held that the treasurer of Grant county, Indiana, had no authority or right to bring a suit in the state court of New York, the court saying:

"Petitioner claims only by virtue of his office. Indiana is powerless to give any force or effect beyond her own limits to the act of 1927 purporting to authorize this suit or to the other statutes empowering and prescribing the duties of its officers in respect of the levy and collection of taxes. And, as Indiana laws are the sole source of petitioner's authority, it follows that he had none in New York. Mechem, Public Officers and Officers, sec. 508; McCullough v. Scott, 182 N.C. 865, 873, 109 S.E. 789. He is the mere arm of the state for the collection of taxes for some of its subdivisions, and has no better standing to bring suits in courts outside Indiana than have executors, administrators, or chancery receivers without title, appointed under the laws and by the courts of that state. It is well understood that they are without authority, in their official capacity, to sue as of right in the federal courts in other states. From the earliest time, federal courts in one state have declined to take jurisdiction of suits by executors and administrators appointed in another state."

In Van Tuyl v. Carpenter, 135 Tenn. 629, 188 S.W. 234, 237 the superintendent of banks of the state of New York, under a statute similar to the one involved in the instant case, sought to enforce an assessment on a Tennessee stockholder. The court, in denying him the right to maintain the suit in his capacity as superintendent of banks, in the absence of special legislative authority to do so,...