Collier v. Smith , 1914 Tex. App. LEXIS 856 ( 1914 )

PER CURIAM.

The motion to consolidate cause No. 676 with 671 is granted, and the records in both proceedings will be considered together and carry the numbers in this court of 671, 676.

The record in No. 676, which comprehends the entire record in 671, with additional proceedings thereafter in the same cause in the district 'court, discloses that E. L. Smith, a stockholder in the First State Bank of Amarillo, Potter county, Tex., petitioned the district court of said county for a writ of injunction for the purpose of restraining W. W. Collier, the bank commissioner of the state of Texas, and his special agent, J. O. Roots, who are in the possession and control of the assets and property of said bank, from disposing of the property of said bank, and from bringing suits against petitioner and other stockholders of said institution, and from paying, or permitting to be paid, any deposits out of the state guaranty funds, without first ascertaining that the same were deposited subject to the payment thereof; and specially petitioning a restraint of the payment by the bank commissioner of the sum of $6,500 to the First National Bank of Amarillo, Tex.

Upon the presentation of the application for injunction, the district judge, in chambers, on the 24th day of April, 1914, ordered the issuance of a writ of injunction “in all things as prayed for,” conditioned upon the execution of a $2,000 injunction bond, and thereafter on May 5, 1914, upon motion to dissolve the temporary injunction, after answer filed, the district judge, upon “pleadings of the parties only” entered an order “that the temporary injunction * * * is hereby dissolved as to all matters in plaintiff's original petition, save and except that said injunction be continued in force as against said defendants, and that they be restrained from levying, assessing, or collecting any assessment on the stock of the individual stockholders of the First State Bank until such time as it may be made to appear to the court that the levying and collecting of such assessment of the individual liability of said stockholders upon their stock shall be reasonably necessary to discharge the liabilities of the First State Bank, and that said temporary injunction, so modified, be continued in force until the further order of this court. * * * » The appellee urges in both causes that this court.is without jurisdiction, for the reason that the proceedings were instituted against appellants, W. W. Collier and J. O. Roots, in their official capacity as commissioner of insurance and banking of the state of Texas and as special agent, respectively, and .not as individuals, and that the attempted appeal as individuals is in reality no appeal.

[1] The appellants have executed an appeal bond as individuals. All that is necessary to perfect an appeal from a temporary injunction is to file the transcript within the proper time in the Court of Civil Appeals. The contention of appellee appears to be based on the fact that the appeal bond is signed by appellants as individuals, and not in their official capacity. If appellants were acting in their official capacity, under the direction of the commissioner of insurance and banking, then they were not required to give bond. R. S. art. 2105; Lane v. Hewgley, 155 S. W. 349, 350. If Roots was special agent for the commissioner, he was, in that capacity, a part of the department, and he was also an officer of the state of Texas, the same as a receiver of a national bank is an officer of the United States, appointed by the comptroller. The petition charges the appellants with acts which are alleged to have been unlawful and unauthorized by law, and sought to restrain their further doing such acts. The temporary order of injunction restrains appellants personally. As state commissioner of insurance and banking, in order to appeal, he was not required to execute a bond. The appellants were enjoined personally from doing - alleged unlawful acts. We see no reason why they may not also join in the appeal as individuals. In' doing so it certainly would not dismiss the appeal. This ground of the motion is overruled.

[2] The affidavit attached to plaintiff’s petition, which petition is in both records, is as follows:

“Before me, the-undersigned authority, on this day personally appeared E. L. Smith, who, being by me duly sworn, deposes and states on oath that he believes the facts therein contained to be true.”

Under Revised Civil Statutes 1911, art. 4649, we think this affidavit is insufficient. This article provided that no injunction shall be granted unless the applicant shall present his petition to the judge, verified by his affidavit. The test of an affidavit, as laid down by the Commission of Appeals, is that the affidavit of the facts sworn to be so direct and unequivocal as that an indictment for perjury would lie if the oath is falsely made. Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213. In 1 Ruling Case Law, p. 770, § 15, it is said:

“An affidavit should always be made by one having actual knowledge of the facts, if possible, and its allegations should be full, certain, and exact; * * * a bare statement of one’s belief being absolutely immaterial unless the case is one where an affidavit as to belief only is required.”

Page 772, § 18:

“Affidavits upon information and belief should allege facts definitely and also set forth the sources of the affiant’s information and the grounds of his belief, to enable the judicial mind to determine whether the belief is. well or illy founded. Inasmuch as affidavit upon information and belief cannot supply the place of positive allegation, affidavits of this nature cannot ordinarily be used except when authorized by statute.”

In our' opinion, the affidavit is wholly insufficient. Smith v. Banks, 152 S. W. 449; Ross v. Veltmann, 161 S. W. 1073.

[3] Since the affidavit is a defect which may be amended, we will not rest the decision of the case upon this assignment.

' [4] An analysis of the first order providing for the issuance of the temporary writ exhibits that the defendants, the commissioner of banking and his special agent, were not restrained from levying or assessing the stock of the individual stockholders of the bank, and the proceedings upon the hearing of the motion to dissolve is in rehlity a first dispensation of that character of relief. The first order for the temporary writ, as stated, restrained the defendants “from suing or bringing suits against this plaintiff and the other stockholders,” of the bank. The subsequent order, at the hearing upon the motion to dissolve not only restrained the defendants from levying any assessments on the stock of the individual stockholders of said bank, but also .restrained them from collecting any assessments which had been previously levied as a condition to collecting the same: The first order did not enjoin the defendants from levying the assessments and collecting the same, by personal solicitation or otherwise by said defendants, outside of court. The first order did restrain the defendants “from suing or bringing suits against this plaintiff and the other stockholders of said institution.” But the second order restrained them from “levying and collecting' * * * such assessment of the individual liability of said stockholders upon their stock “until such time as it may be made to appear to the court that it shall be reasonably necessary to discharge the liabilities of said bank. The operative effect of the last order is to prevent the levy of assessments upon the stock and of collecting any such assessments, except by presentation of appropriate reasons, based upon the necessity of a discharge of the liabilities of said bank, addressed to the judicial determination of the court; in other words, it means that if, in this proceeding, or in any independent proceeding, the commissioner of banking files a petition or other appropriate pleading, making an exhibition of a certain predicate, with reference to the assets and liabilities of the bank, as a prerequisite to the necessity of a discharge of the liabilities of said bank, and the court determines that those reasons are sufficient, the levy, the assessments, and the collection of such assessments may then be made by said officer, and not until then. It is difficult to apply a judicial scalpel and cut in twain that which is new and that which is old, but the granting of the relief in the case in the subsequent order at the hearing upon the motion for dissolution is so changed, in substance and in effect, effectuating such a preponderating influence upon the affairs of the bank, different from that first granted in chambers, upon the application, in the first order of the court, that we are prone to say that this is such a new order, granting, in substance, such different relief, that the statute permitting appeals grants the jurisdiction to this court for the purpose of reviewing this matter. We concede, of course, on account of the phraseology of this statute, as has been often decided, that an appeal will' not lie from an order to dissolve a temporary injunction. The operative effect of this order is to constitute a prerequisite showing to the district court, based upon certain grounds, a condition precedent to the right of collecting, or attempting to collect, any money due by said stockholders, which compels the commissioner of banking to go to court, which is a restraint in its injunctive features, commanding and requiring ’the things to be done, different from any relief theretofore prayed for, so that the substance of the relief and the nature and character of the restraint is new and independent.

In the cause of Baumberger v. Allen, 101 Tex. p. 356, 107 S. W. 526, the Supreme Court of this state, speaking through Justice Brown, inferentially held that, if the continuation of an old Injunction was, In effect, the granting of a new writ (at least it is deducible from that opinion), the Court of Civil Appeals would have jurisdiction to consider the appeal.

[5, 6] Upon the merits of this appeal we think the order at the bearing upon the motion to dissolve, granting the relief, is improper for the following reason: Without setting out specific provisions of the national bank act, and detailing, analogous provisions of the state act, in regard to state banks, however, upon an inspection of same, we think it was the purpose of the Legislature of this state, to a considerable extent, to follow the trend of the national act, unnecessary to particularize, except to say that section 5234 of the national act (U. S. Comp. St. 1901, p. 3507) provided, among other provisions, that the federal Comptroller (where a national bank is in the hands of a receiver) “may, if necessary to pay the debts of such association (meaning a national bank), enforce the individual liability of the stockholders,” and that article 459 of the Acts of the 31st Legislature, 2d Ex. Sess. c. 15, prescribes that “the commissioner may, if necessary to pay the debts of such state bank, enforce the individual liability of the stockholders.”

In the case of Kennedy v. Gibson, 75 U. S. (8 Wall.) page 505, 19 L. Ed. bottom page 478, the Supreme Court of the United States said:

“It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce' their personal liability, and whether the whole or a part, and, if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action (making the assessment) on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of the suit by the receiver. * * * It would be attended with injurious consequences to forbid action against the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses by insolvency and otherwise, in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity of the claims. ’ Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen. * * * A speedy adjustment is necessary to the efficiency and utility of the law; the interest of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected, it is provided by the statute that any surplus which may remain after satisfying all demands against the association shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered.”

The Supreme Court of the United States has uninterruptedly, without the necessity of citations, adhered to the rule announced in the Kennedy-Gibson Case; and when the Legislature of this state adopted the act of the federal Congress with reference to the particular question under discussion, it adopted the construction by the Supreme Court of the United States given to the federal act. If there is something Incorporated into the statute, or if there is a legislative purpose exhibited in any act germane to the same subject-matter, indicating that the construction given by the courts of the country, from which the act was borrowed, should not prevail, the uniform construction given to the act borrowed does not prevail. There is nothing indicated, however, in the acts of the Legislature pertaining to this subject-matter that any different rule of construction should prevail with reference to the statute under consideration; hence the settled and uniform construction by the Supreme Court of the United States is a part of this law. Morgan v. Davenport, 60 Tex. 230.

The orders of the trial court in both cases, 671 and 676, are vacated and set aside, with the further order that the appellee pay all costs of both appeals.