Planters' Loan & Sav. Bank v. Berry

• Decision Date: 13 February 1893
• Parties: PLANTERS' LOAN & SAV. BANK v. BERRY.
• Court: Georgia Supreme Court

18 S.E. 137

91 Ga. 264

PLANTERS' LOAN & SAV. BANK v. BERRY.

Supreme Court of Georgia

February 13, 1893

Syllabus by the Court.

The statute of the United states prohibits seizure of property belonging to national banks (irrespective of whether they be solvent or insolvent) before final judgment, by virtue of any attachment issued under a state law, and returnable to a state court. Any such seizure is therefore void, and a bond given by a national bank to dissolve such attachment, served by summons of garnishment, is also void. The giving of such bond is not an appearance in the attachment case so as to make valid a judgment entered up on the bond in that case against the bank and the sureties executing the bond. The judgment is wholly void; and an affidavit of illegality, made and filed by one of the sureties in resistance to a levy upon his property under an execution founded on the judgment, must be sustained. The judgment being wholly void for want of jurisdiction in the court rendering it, affidavit of illegality is a proper defensive remedy.

Error from city court of Richmond; W. F. Eve, Judge.

Action by J. M. Berry against the Planters' Loan & Saving Bank. Plaintiff had judgment, and defendant brings error. Reversed.

Geo. A Mercer, J. B. Cumming, Bryan Cumming, Francis C. Barlow, and Barlow & Wetmore, for plaintiff in error.

Frank H. & Wm. K. Miller, for defendant in error.

BLECKLEY C.J.

How the statutes of the United States stand at the present time on the subject of protecting national banks against the seizure of their effects by virtue of attachments in advance of final judgment may be seen by reference to Rev. St. U.S. § 5242. The only words necessary to be now quoted are these "And no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding, in any state county, or municipal court." The opinion, whether professional or judicial, which construes this legislation as allowing seizure under attachment before final judgment in case the defendant bank is solvent, and prohibiting it only where the bank is insolvent, is manifestly unsound. Certainly, no such distinction is made in the letter, and we discern no necessity for it in the context or in the reason and spirit, of the legislation. The statutory policy seems to be prevent all preference or priority in claims against these banks sought to be acquired by seizure of effects under state authority before the final adjudication of such claims, and to protect the banks from being weakened or crippled by such antecedent seizures. The national banks created by congress are to control their own assets and resources as against state interference at the instance of creditors, or of pretended creditors, until the real existence of the alleged debts has been ascertained by final judgment. Ante-judgment seizures cannot be made; a state can make post-judgment seizures only. Mesne process will not suffice for seizing by state courts; these courts can seize alone by final process. This policy may be wise or unwise, wholesome or unwholesome but in either event it is the one established by competent legislative authority, and must be respected and enforced accordingly. In Bank v. Mixter, 124 U.S. 727, 8 S.Ct. 718, Waite, C.J., said: "Although the provision was evidently made to secure equality among the general creditors in the division of the proceeds of the property of an insolvent bank, its operation is by no means confined to cases of actual or contemplated insolvency. The remedy is taken away altogether, and cannot be used under any circumstances." Whether this was obiter or not, as applied to the facts of that...