Twiggs County Bank v. Mccallum, (No. 18896.)

• Decision Date: 21 February 1929
• Docket Number: (No. 18896.)
• Citation: 147 S.E. 129,39 Ga.App. 306
• Parties: TWIGGS COUNTY BANK v. McCALLUM.
• Court: Georgia Court of Appeals

39 Ga.App. 306

147 S.E. 129

TWIGGS COUNTY BANK

v.McCALLUM.

(No. 18896.)

court of Appeals of Georgia,

Division No. 2.

Feb. 21, 1929.

(Syllabus by the Court.)

Error from Superior Court, Twiggs County; R. Earl Camp, Judge.

Suit by the Twiggs County Bank by A. B. Mobley, Superintendent of Banks, against J. A. McCallum. Petition was dismissed on demurrer, and plaintiff brings error. Reversed.

Twiggs County Bank, by A. B. Mobley, superintendent of banks, brought suit against J. A. McCallum to recover the sum of $SG0, which, it was alleged, represented money which the defendant had had on deposit in the plaintiff bank, and which the bank, had on July 14, 1926, paid to the defendant by check on the plaintiff bank while the bank was insolvent and on the day of the failure of the bank. It was alleged that the payment was made with a view of preventing the application of the assets of the bank in the manner prescribed in the Banking Act, and with a view of giving a preference to one creditor over another; that the payment thus made gave to the defendant a preference over other creditors of the bank, and that the assets of the bank and the assessments made upon the stockholders were insufficient to pay the creditors in full and the payment to the defendant gave him a preference over the other creditors. The petition was demurred to upon the ground that it set out no cause of action, and that it alleged no acts upon the part of the plaintiff bank or circumstances showing an intent by the plaintiff bank to create a preference in favor of the defendant, and failed to allege knowledge on the part of the defendant of the insolvency of the bank. The demurrer was sustained and the petition dismissed. The plaintiff excepted.

Jones, Jones & Johnston, of Macon, for plaintiff in error.

L. D. Moore, of Macon, and J. D. Shannon, of Jeffersonville, for defendant in error.

STEPHENS, J. (after stating the foregoing facts). Article 19, § 46, of the Banking Act approved August 16, 1919, and effective January 1, 1920 (Ga. L. 1919, p. 135 et seq.), provides that: "All transfers of notes, bonds, bills of exchange, or other evidences of debt owing to any bank, or deposits to its credit; all assignments, mortgages, conveyances or liens; all judgments or decrees suffered or permitted against it; all deposits of money, bills or other valuable things for its use, or for the use of its stockholders or creditors; and all payments of money, either after insolvency or in contemplation of insolvency, with a view to prevent application of its assets in the manner prescribed in this Act, or with a view to the preference of one creditor over another, shall be null and void, provided such acts enumerated were committed within three months prior to the failure of such bank."

One who has money in a bank on general deposit is a creditor of the bank, and a withdrawal by the depositor of any of the money so deposited is a payment of money out of the assets of the bank. Hill v. Western & Atlantic Railroad Co., 86 Ga. 284, 12 S. E. 635, McGregor v. Battle, 128 Ga. 577, 58 S. E. 28, 13 L. R. A. (N. S.) 185. The...