Squire v. Guardian Trust Co.
| Decision Date | 20 January 1947 |
| Citation | 79 Ohio App. 371,72 N.E.2d 137 |
| Parties | SQUIRE, Superintendent of Banks, v. GUARDIAN TRUST CO. et al. |
| Court | Ohio Court of Appeals |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. The facts alleged in a petition govern the relief to which a plaintiff may be entitled, the nature of the action, whether in equity or law.
2. In construing a petition upon demurrer, the plaintiff is entitled to consideration of not only the proper and well pleaded factual allegations, but also to the fair, reasonable and favorable intendments and inferences arising therefrom.
3. The nature of an action, whether in law or equity, is determined by the character of the principal relief justified by the facts alleged in the petition.
4. It is an equitable action if it is necessary to determine first whether the plaintiff is entitled to equitable relief before legal redress can be granted.
5. Where the relief of accounting is merely ancillary to the principal relief of obtaining money, the action is one at law and not in equity.
6. The statutes of Ohio permit the Superintendent of Banks to maintain an action against directors of a bank who have violated their obligations to the bank and in such action to represent the interests of shareholders, depositors, other creditors and the bank.
7. If a cause of action in favor of such shareholders, depositors, or other creditors, is barred by the statute of limitations, it is barred when presented by the Superintendent of Banks.
8. It is not necessary for the Superintendent of Banks in maintaining such an action to invoke equity jurisdiction, although upon his refusal to act, actions maintained by shareholders, depositors or other creditors for the benefit of the bank would involve jurisdiction in equity.
9. When the Superintendent of Banks in such action represents the interests of shareholders, depositors, other creditors and the bank, there is no misjoinder of parties plaintiff.
10. The oath of the director of a Bank though reduced to writing and signed by him does not constitute a contract in writing upon which an action ex contractu may be maintained for misfeasance or nonfeasance in office.
11. The weight of authority places the liability of directors of a bank for misconduct in office either upon tort liability recognized at common law or upon liability created by statute.
12. The relation of directors to a solvent bank is not that created by the obligations imposed upon the fiduciary of an express trust.
13. Where directors are charged with neglect or negligence in the administration of the affairs of a bank, and there are no allegations in the petition from which actual fraud can be reasonably inferred, Section 11224, General Code, providing a four year limitation of action is applicable.
14. Where such directors of a bank are charged with specific violations of the banking act Section 11222, General Code, providing a limitation upon actions of six years apply.
15. The statute of limitations commences to run from the time a wrongful act is committed by a director either involving a violation of his common law duty to the bank or a violation of statutory obligation.
16. Mere concealment by a director of a violation of his duty to the bank, not amounting to actual fraud on the bank is not sufficient to toll the applicable statute of limitation.
17. Neither the state banking act nor the general statutes of limitation contain any provision tolling the operation of the statutes of limitation merely because the directors charged with violation of their duty to the bank have retained jurisdiction over the assets and administration of the bank where such misconduct falls short of actual fraud against such bank.
18. In the absence of such provision the holding of a court that such continued dominion will toll the statute of limitation is tantamount to judicial legislation.
19. The statute of limitations applicable to such violations of directors' duty to the bank is not tolled upon the theory of 'continuing wrong' even though such directors remain in office until control thereof is assumed by the conservator, where such violations of duty do not amount to actual fraud upon the bank.
20. The statute of limitations applicable to torts of directors against the bank, not amounting to actual fraud, is not delayed in its operation by reason of the fact that damage and loss to the bank, due to such tort, may not be apparent until a date after the commission of such tort. The injury due to such tort is immediate, the cause of action is created and the statute of limitations commences to run immediately upon the commission of such wrongful act.
21. The policy of the law is against the assertion of stale claims.
22. In an action maintained by the Superintendent of Banks against directors of such bank for loss to the bank, due to wrongful acts of such directors, not amounting to fraud upon the bank, the Superintendent in such action represents depositors who upon his refusal to act, could have maintained such action, but such action by depositors would have been for the benefit of the bank and their action in such representative suit would have been subject to any statute of limitations applicable to the right of action of the bank. Such depositors as a class have no right of action independent of that of the bank for such wrongful acts and loss.
23. Where directors of a bank are guilty of wrongful acts causing loss to such bank, the mere fact that such directors do not take steps to undo the effects of such wrongful acts do not constitute a new tort, for which they may be held liable.
24. Where plaintiff alleges in several causes of action the commission of certain torts by directors of a bank, no new cause of action is stated where the operative facts, charging specific torts alleged in such several causes of action are combined and assembled in an additional cause of action coupled with a charge that such individual specific torts were committed in conformity to a plan, scheme, policy or conspiracy.
25. Where plaintiff is unable to and does not allege in his petition that loss has been suffered by a bank due to the commission of a wrongful act of a director, such petition fails to state a cause of action, and it may be assumed that such plaintiff has prematurely asserted his right against such director.
26. Where a plaintiff, after the opinion of the trial court upon a demurrer to the petition has been announced, presents to such trial court a supplemental petition, containing allegations of incidents, which it is alleged have occurred since the filing of the original petition, and such allegation of new and additional facts requires an involved and complicated comparison of the supplemental petition with the original petition in order that the application of such additional facts to the causes of action originally stated may become apparent, the trial court commits no abuse of discretion in refusing the filing of such amended petition.
27. A demurrer to an entire cause of action may not be sustained as to part of such causes of action and overruled as to part, even if it be determined that such 'cause of action' contains allegations of more than one cause of action. If a valid cause of action, not subject to the statute of limitations, is stated in such 'cause of action' a demurrer thereto must be overruled.
28. Causes of action against several defendants may not be joined in the same petition unless all of such causes af action affect all of such defendants.
See also 72 N.E.2d 134.
H. S. Jenkins, Atty. Gen., Davis & Young and Krueger, Gorman & Davis, all of Cleveland, for plaintiff appellant.
Squire, Sanders & Dempsey, of Cleveland, for appellees Bowman, Dean, Gill, Petrequin, Rossiter & Whelan, McIntosh, and Patterson.
Thompson, Hine & Flory, of Cleveland, for appellees Bishop, Prescott, Stone and Wade.
Boyd, Brooks & Wickham, of Cleveland, for appellee Daley.
Jones, Day, Cockley & Reavis, of Cleveland, for appellee Mather.
Andrews, Hadden & Putnam of Cleveland, for appellee Dan R. Hanna Jr.
Grossman, Carter, Hamilton & Rosenman, of Cleveland, for appellee Marc J. Grossman.
Frank H. Pelton, of Cleveland, for appellees Monks and House.
Roscoe M. Ewing, of Cleveland, for appellees Robinson and Edgar D. Rogers.
Garfield, Baldwin, Jamison, Hope & Ulrich, of Cleveland, for appellee Tillotson.
McKeehan, Merrick, Arter & Stewart, of Cleveland, for appellees Marshall and Eide.
Baker Hostetler & Patterson and Dorn & Merry, all of Cleveland, for appellee Edward S. Rogers.
Clinton DeWitt, of Cleveland, for appellee Brooks.
Henry H. Pleasant, of Cleveland, for appellee Kline.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, in which demurrers to certain causes of action in the Fourth Amended Petition were sustained, and those causes of action dismissed, the plaintiff not desiring to plead further thereon.
The Fourth Amended Petition contains 97 causes of action. In the brief of the plaintiff appellant is it stated:
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Antioch Co. v. Morgan, 14-3790
...and judicial decisions. See Chinese Merchants Assoc. v. Chin, 823 N.E.2d 900, 903 (Ohio Ct. App. 2004); Squire v. Guardian Trust Co., 72 N.E.2d 137, 146-47 (Ohio Ct. App. 1947). Although neither of those cases involved Ohio Rev. Code § 2305.09(D), both decisions are relevant to our inquiry ......