Shaw v. Strong

• Decision Date: 07 February 1931
• Docket Number: No. 3955.,3955.
• Citation: 35 S.W.2d 769
• Parties: SHAW, Banking Com'r, v. STRONG.
• Court: Texas Court of Appeals

35 S.W.2d 769

SHAW, Banking Com'r, v. STRONG.

No. 3955.

Court of Civil Appeals of Texas. Texarkana.

February 7, 1931.

Rehearing Denied February 12, 1931.

Appeal from District Court, Hunt County; Grover Sellers, Judge.

Suit by the First State Bank, Wolf City, Tex., against M. Strong, wherein James Shaw, Banking Commissioner, was substituted as party plaintiff. Judgment for defendant, and plaintiff appeals.

Affirmed.

As commenced by a petition filed July 24, 1929, this suit was by the First State Bank, Wolf City, Tex., as plaintiff, against appellee M. Strong as defendant. By an order made by the court below July 21, 1930, appellant, as banking commissioner, was granted "the privilege and right (quoting) to be substituted in the place and stead of said First State Bank, Wolf City, as plaintiff in this cause, but only with such rights and authority as could be asserted by First State Bank, Wolf City, Texas." In an amended petition filed by said banking commissioner July 21, 1930, it was alleged that on December 23, 1929, the First State Bank of Wolf City, Tex., "because of its insolvent and failing condition," was closed by its board of directors and placed in the hands of the banking commissioner for the purpose of liquidation; that said banking commissioner having determined it was necessary to do so, on December 30, 1927, "levied an assessment of 100% upon each and all of the stockholders" of said First State Bank of Wolf City, Tex.; "that said assessment became due and payable immediately after the levy of the same"; that on said December 23, 1927, appellee Strong was the owner of five shares of the capital stock of said First State Bank of Wolf City, Tex., of the value of $100 each; that on January 11, 1928, said banking commissioner, for a valuable consideration, "transferred, assigned and delivered (quoting) to First State Bank, Wolf City, Tex., all of the assets of the First State Bank of Wolf City, Tex., which included the assessments which had previously been levied by the Banking Commissioner"; "which said sale and transfer (quoting further) was in all things approved and confirmed by the district court of Hunt county, Tex., on the 23d day of December, 1927, in cause No. 16001 entitled `Ex parte the First State Bank of Wolf City, Texas, in liquidation'"; that by reason of his ownership of ten shares of stock and said "levy and assessment thereon (quoting) by the banking commissioner, and the sale of the assets, including the assessment to First State Bank, Wolf City, Tex., the defendant M. Strong (appellee) became liable and bound to pay to First State Bank, Wolf City, Tex., the sum of $1,000"; that on January 15, 1930, the First State Bank, Wolf City, Tex., "because of its insolvent and failing condition (quoting) was by order of its board of directors closed and placed in the hands of said Banking Commissioner" for the purpose of liquidation, and (quoting) "same is now being liquidated by him under the laws of this state"; that by reason of the failure of said First State Bank, Wolf City, Tex., all of the assets belonging to said bank are now in the hands "of said Banking Commissioner" for the purpose of collection and liquidation, and "the stock assessment (quoting) levied against the stock owned by the defendant constitutes an asset of First State Bank, Wolf City, Tex.; that substitute plaintiff herein (said banking commissioner) has made demand upon the defendant (M. Strong) for the payment of such liability, but that defendant has refused to pay the same." The prayer was for judgment for the $1,000 sued for. The court below sustained demurrers, general and special, questioning the sufficiency of said amended petition, and, appellant refusing to amend same, rendered judgment denying appellant a recovery of anything and in appellee's favor for costs.

Clark, Harrell & Clark, of Greenville, for appellant.

Bowman & Bowman, of Greenville, for appellee.

WILLSON, C. J. (after stating the case as above).

By force of section 16 of article 16 of the...