Seay v. Bank Of Rome

• Court: Georgia Supreme Court
• Writing for the Court: Crisp
• Citation: Seay v. Bank Of Rome, 66 Ga. 609 (Ga. 1881)
• Decision Date: 28 February 1881
• Parties: Seay et al. vs. Bank of Rome et al.

66 Ga. 609

Seay et al. vs. Bank of Rome et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

[Jackson, Chief Justice, being disqualified. Judge Crisp, of the Southwestern circuit, was designated by the governor to preside in his place.]

Banks. Constitutional law. Liens. State depositories. Debtor and creditor. Before Judge Underwood. Floyd County. At Chambers. April 9th, 1881.

Reported in the decision.

D. S. Printup; Joel Branham, for plaintiffs in error.

Clifford Anderson, attorney general; Dabney & fouche; C. M. Featherston; C. Rowell, for defendants.

(The principal questions in this case being also involved in the case of Creditors vs. The Citizens' Bank, pending in Fulton superior court, counsel in that case asked leave to be heard in this. It was granted, and Messrs. L. E. Bleckley, John L. Hopkins and Z. D. Harrison appeared for the general creditors, and Mr. R. J. Moses appeared with the attorney general for the state.)

Crisp, Judge.

On the eleventh day of November, 1879, the governor of this state, under and by virtue of the act of the genral assembly approved October 16th, 1879, appointed the Bank of Rome, a corporation doing business in the city of Rome, in this state, a depository. On the fifteenth day of November thereafter, said corporation made and executed the bond required by law. During the year 188o, the treasurer of this state deposited in said bank of the funds of the state the sum of $25,500.80, and the tax collectors of the various counties designated by the governor deposited with said bank large amounts of thetaxes collected by them. On the twenty fifth day of March, 1881, the Bank of Rome suopended, and assigned all of its property, real and personal, notes, accounts, money and choses in action to John H. Reynolds, of the county of Floyd, for the benefit of its creditors, "prorata, or in full, if there should be enough to pay in full, with no other preference than is, or may be, allowed by law." There is, in the deed of assignment, a recital that the bank is "justly indebted to various parties, in sundry considerable sums, and has become unable to pay and discharge the same with punctuality, or in full." On the thirtieth day of March, 1881, plaintiffs in error, depositors in said bank, filed their bill in Floyd superior court against the Bank of Rome et al., charging, among other things, that the Hon. D. N. Speer, treasurer of this state, the state being a large creditor of the bank, was claiming a first lien on all the assets of said bank, and was attempting to seize and take possession of the same, that the bank was insolvent, and could not pay more than fifty cents on the dollar of its indebtedness; the prayer is for the appointment of a receiver to take charge of the property of the bank, and collect the assets, and to administer the estate for the benefit of all the creditors under the assignment and the direction of the court, that all parties having claims against the bank and all parties indebted to the bank might be made parties to the bill, and interplead the one with the other; there is also a prayer for an injunction, to restrain and enjoin all persons whomsoever from interfering or meddling with the assets of said bank in any way, except under order of the court. This bill, was presented to the chancellor, who granted a rule to show cause, returnable on the ninth day of April, 1881, and also a temporary restraining order. The Bank of Rome at the date of the assignment had received, and not accounted for, of the state\'s funds the sum of $53,015.73. On the first day of April, 1881, the governor of this state, against the Bank of Rome and itssecurities on the bond hereinbefore mentioned, issued a writ of fieri facias for the full amount of said bond, fifty thousand dollars, which fieri facias was, on the second day of April, 1881, by the sheriff of the county of Floyd, levied upon the real estate and fixtures of said bank (neither the governor nor the sheriff had knowledge of the restraining order of the chancellor, and no point was made on that ground). To this bill the Rome Bank and the assignee made answer. The bank answered that the assignment was made in good faith, for the benefit of its creditors without preference, and submits the distribution of the assets and settlement of priorities to the court, under the assignment, and through the assignee. The assignee answered, admitting the assignment and his acceptance, says he has been notified of the state\'s claim of priority, asks that the sheriff and the attorney general may be made parties in behalf of the state, and that all parties having claims against said bank may be required to interplead, and settle their respective rights, and that he may have instructions in the premises; he also attaches an itemized list of the liabilities of said bank, and a statement of its assets. The indebtedness of the bank exclusive of capital stock is $165,462.19, of this amount there is due the state $53,01575; other depositors $28,272.34; depositors on certificate, $17,496.23; the nominal assets are $200,000.00. At the hearing on the 9th of April, the complainants amended their bill in several particulars, not necessary to be mentioned here; after argument the chancellor refused the injunction sought and held that the state was entitled to a prior lien over all other creditors of the bank, for the whole amount of the debt due the state by said bank, on all its property, both real and personal. To this decision the complainants filed their bill of exceptions, and we are asked to review that judgment.

1. Counsel for plaintiff in error insist that the act of October 16th, 1879, creating state depositories, is uncon-stitutional, because, as they allege, the caption of the act contains more than one subject matter, and the body of the act contains matter different from the caption. We recognize the fact that if this criticism were well taken, we would be forced, under the imperative mandate of the constitution itself, to declare the act void, but we fail to perceive that the act does contain more than one subject matter, to-wit: the creation of state depositories, or that the matter in the body of the act is at all different from what is naturally suggested by the caption, to-wit: defining its duties and prescribing its liabilities. 21 Ga., 592, 612, 513; 62 Ib., 473; 31 Ib., 69.

2. By the terms of the act creating depositories, banks accepting the appointment are required to give bond and security, to be approved by the governor, in the sum of fifty thousand dollars, conditioned for the faithful performance of such duties as shall be required of them, and for a faithful account of all money or effects belonging to the state that may come into their hands during their continuance in office; and it is further provided that said bonds, when given, shall have the same binding force and effect as the bond now required by law to be given by state treasurers, and in case of default, shall be enforced in like manner. In order to find what is the " binding force and effect" of the...