Smith v. Shepler

ROSS, J.,

pro tem.

Judgment was given in favor of plaintiff liquidator against defendant and appellant, a resident of Los Angeles County, California, for $3,739.08, based on his ownership of thirty shares of stock in First State Bank of Winter Haven, in Florida, of the par value of $3,000, interest at seven per cent being allowed on that sum from August 23, 1929, being the date on which the state comptroller of Florida made his order requiring all stockholders in the bank to pay the full amount of their alleged statutory liability, which could not exceed the par value of their shares. Defendant has appealed on a bill of exceptions duly served and filed.

The facts of the case include the following:

The defendant had owned fifteen shares of the stock of said bank for some years; in 192'6 he received fifteen additional shares as a 100 per cent stock dividend on which occasion he mailed in his stock certificates and received a new certificate for thirty shares, par value of $3,000.

On May 15,1929, the bank became insolvent and was placed in charge of the state comptroller as provided by statute. In June, 1929, by order of court, a liquidator, the original plaintiff herein, was named to act pursuant to the statute.

Section 4128, Revised General Statutes of Florida, 1920, provides that: "Stockholders of every banking company shall be held individually responsible equally and ratably and not one

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for the other for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.”

The Florida Bank Act, section 4162, Revised General Statutes, 1920, provides in part that: “Such liquidator under the direction and supervision of the comptroller . . . may, if necessary, to pay the debts of such bank . . . sue for and enforce the individual liability of the stockholders.”

In the instant case, the comptroller in August, 1929, made and issued a written order entitled “Levy and Assessment on the Shareholders of a State Bank”, by which he declared the necessity for the stockholders to pay the full amount of their liability and directed the receiver, or liquidator, to call upon said stockholders to pay. Demand was made upon the defendant and upon his failure to pay this suit was instituted in the California courts.