Merchants' & Planters' National Bank v. Trustees of Masonic Hall , 63 Ga. 549 ( 1879 )

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 fi.fa. can be levied; he openly proclaims that the judgment shall not be paid while it can be, resisted; the stockholders have been paid large sums of money so that ■ the assets are reduced from $225,000.00 to $40,000.00, and how soon the remaining .assets may in like manner be scattered amongst the stockholders, many of them non-resident, no man can foresee. The only fund, therefore, out of which this judgment debt •can ever be paid is in danger, and in such case a receiver will be appointed unless other good reasons be exhibited ■against it. Eor the bank is insolvent so far as available legal assets within the reach of levy and sale under the ■common law fi.fa. is concerned, and the only hope of the creditor is in the assets not capable of being levied on and rapidly disappearing..

Code, §§3098, 3149, 274, 1946; Thompson’s National Bank Cases, 406, 321, 912, 203, 792, 77, 559, 774, 786; Rev. Stat. U. S., 5597 — cited by defendants in error.

2. But it is said that a Georgia state court will not interfere with a court of the United States first obtaining jurisdiction, and that such a court has jurisdiction and in contemplation of law is in possession of the res when the bill is brought to dispose of that, so soon as the bill is filed, and is not postponed to the time that a receiver is actually appointed. That is so, we hold, in cases where the receiver is appointed. Such appointment will date back to the time of filing the bill; and tbe state receiver will yield to tbe federal receiver, especially when by collusion tbe former was appointed on purpose to be ahead of the latter in point of time. This was ruled substantially by this court in May et al. vs. Printup, receiver, et al., 59 Ga., 128. But it' would seem here that the stockholders’ bill has been pending a long time in the circuit court of the United States and no receiver is yet appointed. Perhaps none ever will be. Is the judgment creditor to wait until one is appointed? He is not even, in this case, or rather the Masonic Hall is not, made a party to the bill in the United States court. If it were, and if the bill filed there were similar to this in review here, and could accomplish the same end, to-wit, the collection of this debt by this judgment creditor having the final process of a state court in its hands, even then we should rule that neither law nor equity nor comity would require the state equity court to wait upon the United States court in a case like this. When that court does act, if it ever should, then will be the time to ask the state court to force its receiver to turn over the assets to the federal receiver, unless, indeed, the good sense of the two officers should harmonize in their management of the trust fund, by securing the judgment, and then turning over the balance of the fund to the United States receiver.

Judgment affirmed.