Mobley v. Chamblee , 39 Ga. App. 645 ( 1929 )

Stephens, J.

Section 20 of article 7 of the banking act approved August 16, 1919 (Ga. L. 1919, p. 135, 160), which provides that after a stockholder in a bank which has been taken over for liquidation by the superintendent of banks has been given notice by mail of an assessment made against the stockholder, if the stockholder “so notified shall refuse or neglect to pay any such assessment within thirty days after the levy of such assessment and notice thereof, the superintendent of banks shall issue an execution against such stockholder for the amount of such assessment,” implies that the stockholder against whom the assessment has been made, and to whom the notice has been given by mail as required, shall be entitled to thirty days, exclusive of the date upon which the notice of assessment was given, withip which to pay the assessment; before an execution by the superintendent of banks can be legally issued against the stockholder. It follows, that, where an assessment against a stockholder was made by the superintendent of banks and the required notice was given on the 19th day of October, 1926, an execution for the enforcement of the assessment which was issued on November 18, 1926, was issued within the period of thirty days after the levy of the assessment and the giving of the notice, and therefore the issuance of the execution was premature, and therefore illegal. The judge of the superior court therefore properly sustained the stockholder’s affidavit of illegality interposed to the levy made under the execution. Civil Code (1910), § 4, par. 8; Knoxville City Mills v. Lovinger, 83 Ga. 563 (10 S. E. 230) ; Rusk v. Kill, 117 Ga. 722 (45 S. E. 42) ; Holt v. Richardson, 134 Ga. 287 (67 S. E. 798) ; Grooms v. Hawkinsville, 31 Ga. App. 424 (120 S. E. 807); Mobley v. Goodwyn, 39 Ga. App. 64 (146 S. E. 78). Judgment affirmed.

Decided April 11, 1929. Rehearing denied May 18, 1929. Orville A. Parle, O. N. Davie, Willingham, Wright & Covington, for plaintiff. G. E. Maddox, Graham Wright, for defendant. Jenkins, P. J., and Bell, J., concur.