Bullock v. Oliver , 155 Ga. 151 ( 1923 )

Hines, J".

S. H. Bullock as receiver of the State Bank of Kissimmee, Florida, a bank chartered under the laws of Florida, filed a petition in Chatham superior court against E. J. Oliver, to recover an assessment levied on twenty-three shares of the capital stock of said bank owned by Oliver. This-assessment was made under a statute of the State of Florida, the material portions of which will be referred to later. The defendant filed a demurrer to the petition, which was overruled by the court. To this judgment the defendant excepted and took the case to the Court of Appeals. That court reversed the judgment overruling the demurrer. Oliver v. Bullock, 28 Ga. App. 446 (111 S. E. 680). The case is now in this court on writ of certiorari, brought to review the judgment of the Court of Appeals.

The statute of Florida provided that “ Stockholders of every banking company shall be held individually responsible equally and ratably, and not for one another, for all contracts, debts, and engagements of such company, to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.” Florida Bevised General Statutes, § 4128. The suit in this case was brought to recover an assessment made upon Oliver under the liability created by this statute. The statute under which this receiver was appointed is as follows: “ On becoming satisfied, from the reports furnished to him by a State Bank Examiner, or upon other satisfactory evidence thereof, that any bank, banker, banking firm, banking or trust company or corporation, doing business in this State under the State laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm, banking or trust company or corporation doing business in this State under such State laws, is in an unsound condition or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without authority of law or in violation of law, . . the State Comptroller may forthwith designate and appoint a receiver to take charge of the assets and affairs of such bank, . . and such receiver shall be subject to dismissal by the Comptroller, whenever in his judgment such dismissal is deemed necessary or advisable; when one receiver is dismissed, another may be duly designated and appointed. Such receiver, under the direction and supervision of the comptroller, shall take possession of the books, records, and assets of every description of such bank, . . and in his name shall sue for and collect all debts, dues, and claims belonging to it, and, upon the order of the court of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such bank, '. . on such terms as the court shall direct; and may, if necessary to pay the debts of such bank, . . sue for and enforce the individual liability of the stockholders. Such receiver shall pay all money received by him to the State Treasurer, to be held as a special deposit for the use and benefit of the creditors, subject to the order of the Comptroller. . . The Comptroller, immediately upon appointing such receiver, shall serve notice upon the president, or upon any vice-president or cashier, or upon any director or other person having the charge or management of any such bank, . . informing him or them in such notice of his action in appointing such receiver, and notifying him or them or it that he would apply, on a date therein named, . . to some circuit judge having jurisdiction over the same, for an order confirming his action and the appointment of a receiver for such banking institution; and such bank, banking firm, or banking or trust company or corporation may, at such hearing, contest before such circuit judge the rightfulness and legality of such action of the Comptroller in appointing such receiver.” Eev. Gen. Stat. Fla., 19 30, § 4163.

The question for decision is whether the Florida'receiver could sue to recover, in a court of this State, the assessment so made upon the stockholder in the Florida bank. It is well-settled law that a chancery receiver has no extraterritorial jurisdiction or power of official action, and can not, as a matter of right, go into a foreign State or jurisdiction and there institute a suit for the recovery of demands due the person or corporation whose estate the receiver is administering; and the court appointing him can not confer upon him authority to go into a foreign jurisdiction and take possession of the debtor’s property; nor can the court appointing him, upon the principle of comity, give him the privilege to sue in a foreign court as the judgment creditor himself might have done where his debtor was amenable to the foreign tribunal to which the creditor resorted. Booth v. Clark, 17 Howard, 322 (15 L. ed. 164); High on Receivers (4th ed.), 271, § 239. A chancery receiver can not sue even in the courts of the State in which he is appointed, unless authorized by an order of the court appointing him (Screven v. Clark, 48 Ga. 41), or unless where he is authorized so to. do by statute. Bank of N. A. v. Wheeler, 28 Conn. 433 (73 Am. D. 683.)

But where the rights and powers of a chancery receiver are not derived solely from his appointment by the court of another State, and where he is invested by statute with the right of a quasi-assignee or representative of creditors, he can sue upon claims and demands due the insolvent persons whose estate he is administering, not strictly by virtue of his appointment, but by reason of his title and the power conferred upon him by such statute. When the statute expressly confers upon the receiver title, the chancery receiver can sue in the courts of the jurisdiction in which he is appointed and also in the courts of foreign jurisdictions. No one questions this doctrine. 23 B. C. L. 141, § 150. This principle likewise applies where by necessary implication a chancery or statutory. receiver is vested by statute with title, or is made the representative of creditors; he being considered, under such circumstances, substantially an assignee. Hnder the national-bank act (13 Stat. 114, § 50, U. S. Comp. St. § 9821), the comptroller of the currency was authorized, when any association refused to pay its circulating notes, to forthwith appoint a receiver who should “take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to such association, and, upon the order of a court of competent juridiction, .may sell or compound all bad or doubtful debts, and, on a like order, sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders provided for by the twelfth section of this act.” In construing this act the Supreme Court of the United States held that “ A receiver of a national bank, appointed by the comptroller of the currency under the 50th section of the national-bank act, may sue for demands due the bank in his own name as receiver, or in the name of the bank.” Bank v. Kennedy, 17 Wall. 19 (21 L. ed. 554). The Florida statute .was modeled after the national bank act; and we can look to the construction put upon the latter act to find the meaning of the Florida statute. In Bank v. Kennedy, supra, it was héld that the power to take possession of the assets of the bank and to collect debts belonging to it vested the receiver with such title as would enable him to sue in his own name. The Florida statute is stronger than the national-bank act. By this statute the receiver is expressly authorized to “ sue for, collect all debts; dues, and claims belonging to ” the bank. The power to “ sue for and collect ” such debts necessarily vested in the receiver title to them, made him the representative of creditors, and a quasi-assignee of the insolvent bank for such purpose.

In Bernheimer v. Converse, 206 U. S. 516 (27 Sup. Ct. 755, 51 L. ed. 1163), the Supreme Court of the United States held that “while a chancery receiver, having no authority other than that arising from his appointment, may not maintain an action in another jurisdiction, a receiver may sue in a foreign jurisdiction to collect statutory liability of stockholders,' where the statute confers the right upon the receiver as quasi-assignee.” The court draws the proper distinction between the above ruling and the ruling in Booth v. Clark, supra, and similar cases, in this language: “It is objected that the receiver cannot bring this action, and Booth v. Clark, 17 How. 322, Hale v. Allinson, 188 U. S. 56, and Great Western Mining Co. v. Harris, 198 U. S. 561, are cited and relied upon. But in each and all of these cases it was held that a chancery receiver, having no other authority than that which would arise from his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi-assignee and representative of the creditors, and as such vested with the authority to maintain an action. In such case we think the receiver may sue in a foreign jurisdiction.” In Converse v. Hamilton, 224 U. S. 243 (32 Sup. Ct. 415, 56 L. ed. 749, Ann. Cas. 1913D, 1292), the same principle was enunciated. As the Florida statute expressly clothes this receiver with power to “sue for and enforce the individual liability of stockholders,” he has such title and such authority as enables him to sue in the court of a foreign jurisdiction to recover such claim, not by virtue of his appointment alone, but by virtue of the Florida statute which invests him with title and with the right to sue. So we are of the opinion that the judgment of the Court of Appeals should be reversed; and the case is remanded to that court for further action in conformity with this ruling.

Judgment reversed,.

All the Justices concur, except Bussell, G. J., and Hill, J., dissenting.