Taylor v. Hutchinson

• Court: Alabama Supreme Court
• Writing for the Court: DOWDELL, J.
• Citation: Taylor v. Hutchinson, 145 Ala. 202, 40 So. 108 (Ala. 1905)
• Decision Date: 21 November 1905
• Parties: TAYLOR v. HUTCHINSON ET AL.

40 So. 108

145 Ala. 202

TAYLOR v. HUTCHINSON ET AL.

Supreme Court of Alabama

November 21, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from Chancery Court, Lee County; W. W. Whiteside, Chancellor.

"To be officially reported."

Proceedings by C. P. D. Taylor to establish a claim against the Shapard Bank, an insolvent bank which had made an assignment for the benefit of creditors, in which J. N. Hutchinson and others filed objections. From a decree of the chancellor confirming an order of the register allowing the claim as a non-preferred claim, the claimant appeals. Affirmed.

J. M Chilton, for appellant.

Albert E. Barnett, for appellee.

DOWDELL J.

The Shapard Bank, a body corporate, being insolvent, made an assignment for the benefit of its creditors, and the trust so created is being administered in the chancery court. The appellant, C. P. D. Taylor, filed his claim for $9,000 with the register, whereupon the appellees, who were creditors filed their objections in writing to said claim. The claim was subsequently amended, and the objections were refiled to the claim as amended. Upon the hearing the register entered an order allowing the claim as a nonpreferred claim against the trust estate, but referring it until the preferred claims of depositors, who had not stipulated for interest, were paid. To this order the appellant, the said Taylor, excepted and took an appeal to the chancellor, who made a decree confirming the report and sustaining the order of the register. From this decree the present appeal is prosecuted. The three assignments of error question the correctness of the register's order, the affirmance thereof by the chancellor, and the chancellor's decree.

The objections to the claim of the said Taylor were filed in writing under the provisions of section 4164 of the Code of 1896, and were based upon the constitutional provision which gives to "holders of bank-notes and depositors who have not stipulated for interest" a preference of payment over "all other creditors," in case of the bank's insolvency. Const. § 250. The objections were heard before the register without any question being raised by demurrer or otherwise, as to their sufficiency and the form of making them; and the insistence here for the first time of the insufficiency of the objections on the grounds stated, if it had any merit, comes too late. Moreover, the statute gives the right to object to "any creditor," and it is immaterial whether the objecting creditor be a preferred or nonpreferred creditor, as in either case he is interested in having the preferred class as small as possible, and the statute makes no difference or distinction.

It is insisted in argument of counsel for appellant that the constitutional provision which gives to "holders of bank-notes and depositors who have not stipulated for interest" a preference over all other creditors is not self-executing, and that there has never been any legislative enactment putting this provision in force. There has been no direct adjudication of this precise question, so far as we have seen, in this state, where the provision was first introduced into the Constitution of 1868, and amplified in that of 1875, or in either of the several other states of the Union where the same provision in substance is found. In Jones v. McPhillips, 77 Ala. 314, however, it is not questioned, but it is assumed and recognized, in this case, that this provision is self-executing. Of a similar provision in the Constitution of the state of Minnesota, in the case of Willis v. Mabon, 48 Minn. 140, 50 N.W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626, it was said: "So far as we are aware, the correctness of this view has never been questioned or doubted in any court, until one of the counsel in this case interposed a brief in which he took the position for which he now contends. Of course, it is true, as counsel says, that this court has never before been called upon to decide the question, and that mere assumption on the part of either bench or bar does not make a thing law; but, on the other hand, it is also true that a construction which has for a third of a century been accepted by every one as so obviously correct as never to have been questioned or doubted is much more likely to be right than a newly discovered one, suggested at this late day by the emergencies of the present litigation. The fact that no such view ever before suggested itself to the minds of court or counsel in the numerous cases where the point might have been made, and where it was to the interest of counsel on one side or the other to make it, certainly raises a strong presumption against it. Moreover, as the general accepted view has doubtless long been the basis of credit of corporations, it ought not now to be disturbed, unless clearly wrong." Further quoting from the same case: "The question in every...