Strasburger v. Schram, 6938.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 93 F.2d 246,68 App. DC 87
• Docket Number: No. 6938.,6938.
• Parties: STRASBURGER v. SCHRAM.
• Decision Date: 15 November 1937

68 App. DC 87, 93 F.2d 246 (1937)

STRASBURGER v. SCHRAM.

No. 6938.

United States Court of Appeals for the District of Columbia.

Argued October 22, 1937.

Decided November 15, 1937.

Michael J. Keane, Jr., of Washington, D. C., for appellant.

Martin F. O'Donoghue and John F. Anderson, both of Washington, D. C., for appellee.

Before ROBB, GRONER, and MILLER, Associate Justices, and WHEAT, Chief Justice of District Court.

GRONER, J.

On July 22, 1936, appellee, Schram, receiver of First National Bank-Detroit, brought his bill of complaint against appellant, Strasburger, a resident of the District of Columbia, alleging that on the 11th of May, 1933, the Comptroller of the Currency appointed C. O. Thomas receiver of the bank because of its insolvency; that on the 15th day of August following he appointed Schram to succeed Thomas and that Schram has continued to act as receiver ever since; that on the 16th of May the Comptroller declared the assets of the bank insufficient to discharge its debts and that it was necessary to enforce the full individual liability of the shareholders as prescribed by the Act of June 3, 1864, as amended; and that on that date he duly made an assessment upon the stockholders of twenty-five million dollars to be paid by them on or before the 23d day of June, 1933, which assessment was amended on June 20, 1933, to extend the time of payment to July 14, 1933, and on July 13, 1933, was amended to extend the time of payment from July 14, 1933, to July 31, 1933; and that demand accordingly was made upon the stockholders for the par value of each share of capital stock held or owned by them.

On September 25, 1936, appellant, Strasburger, filed his motion to dismiss the bill because the claim was barred by the statute of limitations. There were other grounds alleged for the dismissal of the bill, but by agreement of parties these were withdrawn, and the only question submitted to the court was the question of the application of the statute of limitations. The District Court overruled appellant's motion to dismiss, and we granted a special appeal.

It is agreed by counsel that the defense of the statute of limitations where — as here — the matter appears on the face of the bill, may be raised by motion to dismiss. It is also agreed that the applicable statute is that of the District of Columbia, so that the case as presented involves the single question whether the cause of action accrued upon the declaration by the Comptroller of the deficiency or whether it accrued on the final date set by the Comptroller for payment. Section 63 of Title 12, U.S.C., c. 2 (12 U.S.C.A. § 63), provides that: "The shareholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares."

The District of Columbia statute of limitations provides (T. 24, § 341, D.C.Code 1929): "and no action the limitation of which is not otherwise specially prescribed in this section shall be brought after three years from the time when the right to maintain such action shall have accrued."

On this appeal appellant insists that the cause of action accrued on the date that the Comptroller declared the deficiency and fixed the amount to be paid by the shareholders. The position taken by the receiver is that the right to maintain the action did not accrue until the final date set by the Comptroller for payment of the assessment.

The suit was brought July 22, 1936. The date of the assessment was the 16th of May, 1933. It is obvious, therefore, that if appellant's position is correct the statute had run. On the other hand, since the date fixed for payment was July 31, 1933, it is obvious that if the receiver's position is correct the statute had not run.

An examination of the reported cases reveals a number of statements on the subject, but few, if any, authoritative decisions directly in point. In McDonald v. Thompson, 184 U.S. 71, 22 S.Ct. 297, 46 L.Ed. 437, for example, the Supreme Court had before it a case where the Comptroller had made an assessment on June 10, 1893, and had set July 10, 1893, as the date of payment. Suit by the receiver was brought in May, 1898. Upon these facts Mr. Justice Brown said: "As the cause of action in this case accrued on July 10, 1893, when the assessment was made payable, * * * and the action was begun on May 20, 1898, more than four but less than five years thereafter, the case really turns upon the question whether the action is upon a `contract or promise in writing,' or `upon a contract not in writing, express or implied,' or `upon a liability created by statute.'"

It is apparent that it was wholly immaterial in that case whether the cause of action accrued on June 10th or July 10th — since the court was dealing in years and not days. But it is significant that the court, to sustain its statement that the cause accrued on July 10th, cited Thompson v. German Ins. Co. (C.C.) 76 F. 892. There Judge Shiras held that the date fixed for payment and not the date of assessment was the date when the cause of action accrued and the statute of limitations began to run. In the Thompson Case it was equally beside the point which date was controlling, since the action was brought more than 4 years after the later date; but the cases are...