Stephens v. Hamilton, 5351
Citation | 81 F.2d 324 |
Decision Date | 17 January 1936 |
Docket Number | 5356,5357,5355,5354,No. 5351,5353,5358.,5352,5351 |
Parties | STEPHENS v. HAMILTON, and seven other cases. |
Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Frank R. Reid and John G. Plain, both of Aurora, Ill., for appellants.
Olney C. Allen and John T. Matthews, both of Aurora, Ill., for appellee.
Before EVANS and SPARKS, Circuit Judges, and WILKERSON, District Judge.
Appellee as receiver of the First National Bank of Aurora filed suits against appellant and other stockholders of the bank to enforce their stockholders' liability. Judgment was rendered against all the defendants in the amount of $100 for each share of stock owned by each, plus interest from the date of demand. From those judgments these appeals were taken. On motion of counsel for all the appellants this court ordered that only the record of the case of Mangan should be printed, and that it should stand as the record in all the appeals, and that all should be consolidated for hearing. One opinion was rendered by the District Court, in the case of Hamilton v. Scheets, reported in 6 F.Supp. 824. We refer to that opinion since it appears that the pleadings and the facts in all the cases were identical, although that particular case is not among the group appealed.
The first group of errors assigned has to do with the pleadings in the case. With his declaration the receiver filed an affidavit of claim setting out his appointment by the comptroller, the determination of the comptroller that it would be necessary to enforce the personal liability of the shareholders of the bank in order to pay its debts, an order of assessment upon the shareholders, the demand upon each, including appellant, for payment, and the failure of appellant to pay any part of the claim. The affidavit further alleged that appellant was the owner of twelve shares of the stock of the bank, and that there was due the receiver the sum of $1200 with interest from the date of demand. To this declaration and affidavit appellant filed the general issue, a special plea, and an affidavit of merits. Several of the defenses set up in the special plea were equitable in nature. Appellee demurred to this plea and moved to strike the affidavit of meritorious defense. His demurrer was sustained and his motion to strike the affidavit was granted.
Appellant first contends that since his special plea raised equitable issues it could not be reached by a demurrer, relying upon the case of Duell v. Greiner (D.C.) 15 F. (2d) 726. As to this, the District Court ruled that although a motion to strike is the proper mode of testing the sufficiency of an equitable plea, nevertheless, if a demurrer is filed, it may be treated as a motion to strike, and we think there was no error in his treatment of it as such. United States v. Mackey (C.C.A.) 216 F. 126; Thome v. Lynch (D.C.) 269 F. 995. However, appellant argued that whether the demurrer be considered as such or as a motion to strike, it admits all facts well pleaded, hence he was entitled to have his pleas considered as though set up in a bill in equity. A perusal of the opinion of the lower court convinces us that his plea received such consideration, and it was only upon its finding that none of the averments of the plea, even if true, constituted a defense to the suit that the court sustained the demurrer.
We adopt the analysis of the District Court as to the plea:
We think the District Court was correct in this ruling, and also in holding that since it appeared that the Old Bank had an outstanding liability at the time it was taken over by the comptroller and the suits here involved started, appellant could not question the necessity of an assessment or the amount thereof as determined by that officer. See Forrest v. Jack, 294 U.S. 158, 55 S.Ct. 370, 79 L.Ed. 829, 96 A.L.R. 1457, and cases there cited as to this point. That the determination of the comptroller as to the necessity and amount of the assessment is conclusive appears to be too well settled to require further citation of authorities. In his reply brief appellant seeks to distinguish his case from Crawford v. Gamble (C.C.A.) 57 F.(2d) 15, and other cases relied upon by appellee as to this issue on the ground that in all of these cases a debt was admitted and that the defense attempted to be pleaded sought to avoid it on other grounds, whereas in the case at bar, it is alleged that there were no debts of the Old Bank and that the assessment of the comptroller was the "result of fraud, error or...
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Bacon v. Barber, 1111.
...Christopher v. Norvell, supra, 201 U.S. at page 222, 26 S.Ct. at page 503, '50 L.Ed, at page 735, 5 Ann.Cas. 740; Stephens v. Hamilton, 7 Cir., 81 F.2d 324, 326; Miller v. Stock, 3 Cir., 65 F.2d 773, 774, 90 A.L.R. 1061. It is the duty of the receiver to enforce the individual liability of ......
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John D. Bacon, Receiver of the National Bank of Bellows Falls v. Richard Robbins Barber
......at page 222, 50 L.Ed. at page 735, 26. S.Ct. at page 503, 5 Ann. Cas. 740); Stephens v. Hamilton, (7th Cir.) 81 F.2d 324, 326;. Miller v. Stock, (3rd Cir.) 65 F.2d 773,. 774, 90 ......
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Abel v. Munro, 8476.
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Heady v. Simmons, 74--55
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