Moore v. Ripley
| Decision Date | 04 March 1899 |
| Citation | 32 S.E. 647,106 Ga. 556 |
| Parties | MOORE et al. v. RIPLEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When a petition filed against a number of the stockholders of a bank, alleging that such bank is insolvent and has no funds or assets to pay either creditors or depositors, that about the sum of $75,000 is due to depositors, that in order to pay the same it would be necessary for each stockholder to be assessed the full amount of his statutory liability, and that under the terms of its charter each stockholder is individually liable for the ultimate payment of the debts of the corporation to an amount equal to the amount of stock held by him, makes the persons named as stockholders defendants to the action, and prays judgment against each of them for the amount of their statutory liability, such petition, in the absence of a special demurrer, not specifically pointing out the want of definite allegations as to the actual indebtedness of the bank, the names of its creditors, and the amounts due them, respectively, and the failure of the petition to pray for a judgment for a specific sum against each of the defendants, will be held to set forth, in substance, a cause of action against the defendants.
2. Where an act incorporating a bank provides that each stockholder shall be individually liable for the ultimate payment of the debts of said corporation to an amount equal to the amount of stock held by him, such liability, since the passage of the act of 1894, may be enforced by the receiver of an insolvent corporation, notwithstanding the act was passed subsequent to the act of incorporation which fixed the liability. The provision of the subsequent act that such liability shall be considered as an asset of the bank, and enforced by the receiver, is remedial in its nature, does not affect any vested right of the creditor, and is applicable in this case.
3. When a banking corporation has been shown to be insolvent, and its assets placed in the hands of a receiver, and in pursuance of an order of court the receiver undertakes to collect by suit the liability of the stockholders for the payment of the debts of the bank as fixed by the statute, all of the stockholders so liable may be joined as defendants in one action.
4. In such a suit it is not necessary that the bank, as a corporation, shall be made a party defendant.
5. Courts of law have jurisdiction on proper petition, supported by proof, to render a judgment in such a case.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by T. J. Ripley, receiver, against W. W. Moore and others. A demurrer to the petition was overruled, and defendants bring error. Affirmed.
Alexander & Lambdin, Brandon & Arkwright, E. W. Martin, and J. A Clarke, for plaintiffs in error.
Anderson Felder & Davis, for defendant in error.
The questions which arise in this case are made by the exception to the ruling of the court below in overruling a demurrer to the petition.
1. The demurrer alleges that the liability of the defendants is not plainly, fully, and distinctly set forth in the petition that the receiver has no legal authority to institute suit, because the liability of the defendants is purely statutory directly to the creditors; that there is no community of interests between the defendants which would authorize a joint suit against them; that the receiver has no such common cause of action against the defendants as authorizes a joint action; that the corporation is not made a party defendant; that there is no sufficient statement of the resources and liabilities of the bank, nor of the entire or net amount of debts due by it, nor of the nature and character of such debts; that the action is not cognizable by courts of law, but can only be maintained in a court of equity. The demurrer was amended, but for the purposes of this decision it is not necessary here to set out the amendment. The petition makes an ordinary suit at law, and, while a judgment is prayed against each of the defendants, the amount for which such judgment is sought is not alleged otherwise than by a prayer for judgment against each for the full amount of his statutory liability. A casual reading of the petition shows that it is exceedingly defective, and, even under the liberal rules of pleading in force in this state, it can barely be maintained against the interposition of a general demurrer. Accepting all the allegations of the petition as true, the several liability of the defendants must vary in amount according to the number of shares of stock held by each. By the act of incorporation, each stockholder is made individually liable for the ultimate payment of the debts of the corporation to an amount equal to the amount of stock held by him. It becomes a material question, therefore, to ascertain, in order to fix the liability of the stockholders, what is the indebtedness of the bank. The petition nowhere sets out the amount of such indebtedness. It does allege that the bank is insolvent, and has no funds or assets to pay either creditors or depositors, and that it is necessary for the receiver to collect from the stockholders the amount of their statutory liability to pay off the indebtedness of the bank. It also alleges that the bank is due its depositors about $75,000, and, in order to pay the same, it is necessary for each stockholder to be assessed the full amount of his statutory liability. The allegations that the bank is insolvent, and has no assets, and that the amount due depositors is about $75,000, are so general in their nature that, in order to ascertain the liability of any one of the defendants, it is necessary that a calculation should be made; nor could any calculation be certain in its results without assuming the indebtedness to be of a particular amount. The petition states that such indebtedness to the depositors is about $75,000. It is the requirement of our Code that the petition shall plainly and distinctly set forth the plaintiff's cause of action, and in an ordinary case at common law it is necessary that the plaintiff should name a sum for which he prays judgment. The demurrer filed to the petition, so far as it relates to the matters now in hand, can only be held to be general. It does not specifically set out any defect, or want of necessary allegation. When offered as a special demurrer, it will be found to be very vague and uncertain. So that, in dealing with it, we can only treat it as general, and, so treating it, we find that the petition alleges the insolvency of the bank, that it has no assets to pay its creditors, that it is due to one class of its creditors $75,000, and, in order to pay this amount, it is necessary that each stockholder shall pay the full amount of his statutory liability. The statutory liability is fixed by the charter. The number of shares at their par value furnishes a basis from which such liability can be ascertained; and when a judgment is prayed against each stockholder it will be held that the prayer is for the entire liability. Evidently the pleader proceeded on the maxim, "Certum est quod certum reddi potest." One difficulty in the application of that maxim, however, is that the necessary fact of the indebtedness of the bank is alleged to be about a given sum. This uncertainty, however, is relieved by the further allegation that the bank is insolvent, and has no funds or assets to pay creditors. Considering all the allegations, we must hold that the petition, in the absence of a demurrer specially directed to and specifying the defects therein, is good in substance.
2. The point is also made by the demurrer that, as the liability set out in the petition is purely statutory, the right of action is directly in the creditors, and the receiver has no right to institute the action. It is argued also, in this connection, that the receiver was not authorized to institute the action. The act incorporating the State Savings Association, and which fixes the liability of its...
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