Jemison v. Plant. & Mer. Bank

CHILTON, J. This case has been twice argued before us. At first we were disposed to rest it upon what we conceived to be an erroneous decision of the primary court upon the sufficiency of the plaintiffs replication to the defendant’s third and fourth pleas; but we have since discovered that the Supreme Court of the United States has decided the Mississippi statute, relied upon in those pleas, to be unconstitutional. — Planters Bank v. Sharp et al. 6 How. U. S. Rep. 103. The court, however, appears to have been divided in opinion, and was not full, and as we are informed that the same question will probably be again presented .in the same court in a short time, we prefer to express no opinion, as to the sufficiency of the third and fourth pleas, and will briefly consider the other questions raised upon the record. Objection was taken in the court below by demurrer to the sufficiency of the notice. The plainliffjoined in the demurrer, and the parties tendered an issue of law thus formed to the primary court for its decision. In Griffin v. The State Bank, 6 Ala. 908, 910, it is said, “The notice issued at the suit of n Bank against its debtor is certainly process, by which the latter is to be .brought into court to answer to an allegation of indebtedness; but after the motion is made, which it informs the party will be submitted, it is something more than process; it is then to be regarded as the motion in writing, indentifying the debt sought to be recovered, and against which the defendant may urge any . ground of defence recognised as available according to legal ■forms. The notice, then, may be assimilated to a declaration; [758] it subserves the purpose both-of a writ and declaration, though it need not be so formal or technical in its allegations as the latter.” The court then say that it is allowable to the defendant.to plead or demur to the notice. — -See also Duncan v. The Tombeckbee Bank, 4 Port. Rep. 131. It appears.to be the constant practice to demur to such notices. It will be observed that in this-case the Bank proposes to proceed, as though its charter had never, been-forfeited, except only that it produces in.court the-cenificate of three persons, purporting to be trustees.'appointed under the act of 1845, that the notes sued on are really and bona fide the-property of the Bank. The notice says, “The Planters and Merchants Bank- will move for judgment and award of execution.” The judgment entry recites that said Bank came by attorney and produced and filed the certificate of the trustees appointed &c., and after setting forth the pleadings, adjudges that the plaintiff, (the Bank) recover &c. There is nothing in the record to show that the suit is by the direction of the trustees, unless indeed the fact that they have given'their certificate cambe so construed; but this can only be regarded as giving the court jurisdiction to proceed in this summary way, and for no other purpose. — Gazzam et al. v. The Bank of Mobile, 1 Ala. 268. It cannot cure a defect in the mode of instituting the proceeding. We need-hardly repeat what has been so often decided, that in summary proceedings of this kind, which are' in derogation of the common law, every fact must affirmatively appear which is necessary to give the court jurisdiction, and that the remedy cannot be inferred, ■ but the party, claiming the benefit of it, must show 'affirmatively and clearly by the record that he brings-himself within the statute authorising it. — Bates v. Planters and Merchants Bank, 8 Por. 99; Levert v. Same, ib. 104. The question' presented is, have the forfeiture of the Bank charter, and' the statutes of the State, predicated upon such forfeiture, wrought no other change in the summary remedy by motion, than to require the certificate of ownership of the claim, sought to be recovered, to be made by some •person or persons, other than' the president of the Bank, whose office is swept away by the forfeiture. ' :We are bound judicially to regard.these statutes, although not specially pleaded. ' Such'was the decision of our predecessors in Crawford et al. v. The Planters and Merchants Bank, [759] 6 Ala. 289, 294. Let us examine their effect upon the remedy here adopted. By the seventh section of the act “for the final settlement of the affairs of the Planters and Merchants Bank of Mobile,” passed the 13th February 1843, it is provided, “that for the purpose of settlement, the powers now granted to the said Bank for maintaining suits, and the corporate name of the Bank shall be continued, and may be employed by the commissioners aforesaid and the certificates, now required of the president of said Bank; may be made by either commissioner.” The act, in a previous section, provided for the appointment of five commissioners to take into their possession the assets of the Bank, in the event the charter should be declared forfeited by the decree of the court, in which a proceeding by information in the nature of a quo warranto was directed to be filed. — Pamph. Acts 1843, p.70-1-2. By the subsequent act to amend the previous statute, passed the 24th Jan. 1845, the number of commissioners is reduced and their duties are more particularly defined. They are to call a general meeting of the stockholders in Jan. 1846, who, at such meeting, are authorised to elect and appoint two or more persons, as trustees of the said Bank, and to fix their compensation; such trustees, when appointed, are required to enter into bond in twenty thousand dollars for the faithful performance of the duties of their office; and the assets of'the Bank are required to be transfered to these trustees by the commissioners, before the 1st May 1846, at which time the office of the commissioners ceased. Provision having been previously made for the payment of the debts due from the Bank by the commissioners, the trustees are required to proceed diligently and without delay to collect all the debts due to the Bank; to sell the real estate; and on the first days of January and July in each year to divide the monies in their hands as trustees rateably among the stockholders. The 8th section of the act provides, “ That the said trustees, or the survivor or survivors of them, may use the corporate name of the said Bank in the collection of the debts due to the same, and may use all - the modes and powers, given to the said Bank by its original charter, or by any subsequent acts of the Legislature, for the collection of its debts, in the same manner, as if the charter of the Bank had never been forfeited. — See Pamphlet Acts of 1845, pages 46-7-8. [760] It does not admit oí a doubt but that the intention of the Legislature in the enactment of these statutes was to vest the power, which had previously been confered upon the corporation as such, of suing upon its demands, &c., in the trustees, who could exercise it, using the llama of lha corporation, which for this purpose is continued. The Bank, as an artificial being, after the forfeiture of its charter, exists no longer in legal contemplation, and the statutes above quoted do not reserve to it the power to sue, but this power is vested in the commissioners by the first act., and in the trustees by the second. They can exercise it as though the charter had never been forfeited, but the Bank as such, independent of them, can exercise no powers, otherwise the judgment of forfeiture and the legislative action upon it would become nugatory. The Bank in ordinary suits, where no certificate would be required to confer jurisdiction, might collect demands, despite of the trustees, if it possessed the power to sue without their direction, and would thus drive them into chancery for an injunction. But it is the creature of the statute, and dependant upon the statute for its powers and the mode of exercising them. — The Bank v. Dandridge, 12 Wheat. 64; 13 Peters, 587. Especially must it find a warrant dearly given by the statute for a resort to this summary remedy, otherwise the proceeding cannot he upheld. The Bank having then no power to move in this case, but that power having been confered on trustees to be exercised in the name of the Bank, it is clear that, unless the record exhibits the trustees as invoking the aid of the court, the Bank, as such, on its own motion, cannot recover. Laying the certificate out of view, which as we have shown cannot be looked to except merely as required to give jurisdiction, the trustees are entire strangers to this record, and the Bank alone is the party, and recovers independent of them. We repeat that no such remedy is now reserved to the Bank, but only to the trustees who may move in the name of the Bank. This objection may at first view seem more technical than solid, but when the consequences to which a contrary doctrine might lead are looked to, it will be found to possess importance in the remedial administration of the law. In The Bank of Niagara v. Johnson, 8 Wend. 645, it was held, that' where receivers had been appointed for a suspended bank, they had the right to use the name of the [761] Bank, which could not under the statute sue in its own name, bur that in such case, “in the declaration it must be avered that the suit is prosecuted by the direction of the receivers.” Analogous in principle is the case of Renick v. Bank W. Union, 13 Ohio, 298 — so, also, in 13 ib. 251, et seq.., it was held, that after the forfeiture of the charter and the appointment of receivers, the latter must sue in the name of the corporation, and the declaration must show the character in which they prosecute. Our conclusion is, that as the record fails to show that this •motion was made by any one, in whose favor the court might rightfully render a summary judgment, and award execution it fails to show that the court had rightful jurisdiction, but exhibits a judgment in favor of, and rendered on the motion of a party, from whom the statute has taken the power of moving, and this against the objection of the defendant to the legal sufficiency of the motion. The demurrer to it properly raises the ■objection and should have been sustained. It is clear that the Bank should move and recover, if at all, by its trustees. We deem it unnecessary to notice the other objections, for want of proper recitals in the judgment entry, to confer jurisdiction upon the court. Let the judgment be reversed and the cause remanded.