State v. Williams

• Decision Date: 08 December 1938
• Docket Number: 6 Div. 379.
• Citation: 184 So. 895,237 Ala. 42
• Parties: STATE ET AL. v. WILLIAMS, SUPERINTENDENT OF BANKS, ET AL.
• Court: Alabama Supreme Court

184 So. 895

237 Ala. 42

STATE ET AL. v. WILLIAMS, SUPERINTENDENT OF BANKS, ET AL.

6 Div. 379.

Supreme Court of Alabama

December 8, 1938

Rehearing Denied Dec. 22, 1938.

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

Bill by the State, for itself and for the use and benefit of the Board of Education of the City of Birmingham, against J. H Williams, Superintendent of Banks, in charge of liquidating the Woodlawn Savings Bank, Irvine C. Porter, as liquidating agent of said bank, and Woodlawn Savings Bank, for preferential payment of claim against the assets of the bank. From a decree sustaining a demurrer to the bill as amended and dismissing it, complainants appeal.

Affirmed.

A. A Carmichael, Atty. Gen., and Stokely, Scrivner, Dominick &amp Smith, of Birmingham, for appellants.

Wilkinson & Wilkinson, of Birmingham, for appellees.

KNIGHT Justice.

This is the second appeal in this case. See State et al. v Williams, Superintendent of Banks, et al., Ala.Sup., 181 So. 792.

On the former appeal we held that the averments of the bill clearly showed that the proceeds of the bonds in question never passed under the power and control of the City Board of Education, and that after these proceeds were deposited in the Woodlawn Savings Bank, the account was only subject to check of the City of Birmingham. In other words, that the title to, and control over these funds never passed out of the said city. Therefore, it was not made to appear from the averments of the bill that the said Woodlawn Savings Bank had received funds belonging to the state under the control of the City Board of Education. We held that the bill, as presented, was without equity.

On remandment of the cause, the complainant, by amendment, undertook to cure the defects in the bill which were pointed out in our former opinion. To that end, the complainant filed the following, as an amendment to his bill:

"Comes the complainant in the above styled cause and amends the bill of complaint as filed herein by striking therefrom Paragraph III and substituting in lieu thereof the following:

"III. It is further represented that subsequent to the receipt of the proceeds of said bonds, a part thereof was deposited in the said Woodlawn Savings Bank in a special account styled 'City of Birmingham, Public School Bond Fund' and that when the said Woodlawn Savings Bank ceased to do business as aforesaid a part of the moneys so

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