Bradley, Receiver v. Aimar , 140 S.C. 14 ( 1927 )

June 4, 1927. The opinion of the Court was delivered by This action was brought by W.W. Bradley, state bank examiner, as receiver of Farmers' Merchants' Bank of Georgetown, S.C. against numerous defendants, for the purpose of collecting in the stockholders' liability of the stockholders of said bank. The state bank examiner was appointed as receiver of said bank by order issued out of the Court of Common Pleas for Georgetown County, dated March 3, 1924. Thereafterwards and on October 31, 1924, this action was commenced. The respondents answered the complaint in several answers containing identical matter pleaded by way of defense. Judgments by default were entered up against numerous defendants in the action, and this appeal concerns only the rights of the defendants who answered.

The appeal is from an order of his Honor Judge Shipp, which is as follows:

"This is a motion to strike out certain answers of defendants as frivolous and sham and failing in that to amend the complaint by striking out the name of W.W. Bradley, as receiver, and inserting the name of A.I. Woodcock, a depositor, for himself and on behalf of all other depositors. Upon hearing argument, both motions are refused. I do not think the bank examiner, as receiver, can maintain the suit, nor do I think such an amendment proper."

The exceptions, 4 in number, raise two questions, which appellants state as follows:

"(1) Can this action be maintained by the receiver of said bank, for the benefit of the depositors thereof, under the order of the Circuit Judge permitting the same by the receiver?

"(2) Did his Honor Judge Shipp err in refusing plaintiff's motion for leave to substitute a depositor as plaintiff in the action?"

The first two exceptions are overruled under the recent decisions of this Court, Johnson et al. v. Adams'Estate et al., 138 S.C. 409; 136 S.E., 885, and the case of Ford et al. v. Sauls et al., 138 S.C. 426;136 S.E., 888. In the case of Johnson et al. v. Adams' Estate et al., Mr. Justice Cothran holds as follows (quoting from Statev. Bank of Clio, 129 S.C. 109; 123 S.E., 773):

"``'That this controversy does not in any wise concern the receiver of the bank. * * * That is a matter with which the receiver is not at all concerned; it is entirely separate and distinct from the administration of the estate in his hands. Court was without jurisdiction to authorize a receiver to maintain actions, on behalf of creditors of an insolvent bank against stockholders on their statutory liability; * * *' such right of action existing alone in the creditors."

He also says in Ford et al. v. Sauls, supra, that he cites with approval the case of Corwin v. Settergren,70 Mont., 535; 226 P., 522, and holds in Johnson v. Adams:

"It follows that his Honor Judge Townsend was without jurisdiction to sign the order of November 6, 1926, appointing Mr. Peurifoy receiver of the stockholders' liability to depositors, a matter which appears upon the face of the proceedings and may be so declared, even sua motu by this Court, as was done in the case of State v. Bank of Clio, 129 S.C. 109;123 S.E., 773. The fact that the application was jointly presented by the receiver and a depositor cannot cure the want of jurisdiction."

The other exceptions are overruled as being without merit; the matter was addressed to Judge Shipp's discretion and will not be disturbed by us.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES COTHRAN, BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE PURDY concur.