The Merch.S' v. The Tr.S Of Masonic Hall

• Citation: 63 Ga. 549
• Parties: The Merchants' and Planters' National Bank et al. v. The Trustees of Masonic Hall.
• Decision Date: 30 September 1879
• Court: Supreme Court of Georgia

63 Ga. 549

The Merchants' and Planters' National Bank et al. v. The Trustees of Masonic Hall.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Banks. Equity. Jurisdiction. United States Courts. Injunction. Before Judge Pottle. Richmond County. At Chambers. May 1, 1879.

The Trustees of Masonic Hall obtained a judgment on June 17th, 1878, against the Merchants' etc Bank, founded on a suit brought January 18th, 1876. Execution issued and a return of nulla bona was made. The bank had gone into liquidation and the president refused to point out assets for levy. Plaintiffs then filed this bill for the purpose of reaching assets which were in the hands of the cashier and president, and which it alleged they were collusively disposing of, and dividing out among the stockholders, in fraud of complainants' judgment, which they refused to pay. They were made parties defendant.

Defendants (denying fraud, etc.,) showed for cause why injunction should not be granted and a receiver appointed, thefollowing, among other reasons:

*(1.) That the bank had gone into liquidation in 1875, before the commencement of the suit, closed its connection with the treasurer of the United States, shut its doors, and ceased actual business.

(2.) That if it was still a corporation this was not the proper remedy against it.

(3.) That a bill had been filed by one of the stockholders in the circuit court of the United States setting out the common law judgment of complainants, and paying the appointment of areceiver. This suit, respondents contended, prevented the state court from appointing its receiver for the same property, as complainants could enter that suit and assert their rights. [It appears that one Fause, a stockholder in the bank, had filed the bill mentioned, and in it had stated the existence of this claim in favor of the Masonic Hall, and prayed for a receiver to take charge of the assets and to settle the affairs of the bank. Complainants, however, were not parties. The bill was brought in September, 1878, but no receiver appears to have been appointed, nor does the record disclose any action taken on it.]

The court granted the prayer for injunction and receiver, and defendants excepted.

For the other facts see the opinion.

J. C. C. Black; Barnes & Cumming, for plaintiffs in error.

J. S. & W. T. Davidson; Hook & Webb; Jos. Ganahl, for defendants.

Jackson, Justice.

1. The return of nulla bona was made by the sheriff upon the execution issued in favor of the Masonic Hall against the Merchants' and Planters' National Bank, and thereupon the plaintiffs in execution filed a bill invoking the grant of injunction to restrain the further distribution of the assets *of this bank among the creditors and stockholders, and the appointment of a receiver to take possession of the assets and keep them in safety to answer a decree to subject them to the payment of the judgment. The chancellor granted the injunction and appointed the receiver, and error is assigned upon his judgment and interlocutory order therein.

We are unable to discover the error. The bank is no longer an agent of the United States. It has gone into liquidation. It has no ostensible property on which a levy can be made; its president declines and refuses to point out any property whereon the common law ft. fa. can be levied; he openly...