Williams v. Carver

RICHARDS, J.

This is an appeal on the part of the plaintiff from a judgment in favor of the defendants upon the pleadings.

The following is a history of the ease: Prior to the institution of this action, the plaintiff herein, in his official capacity of superintendent of banks of the state of California, had commenced an action against all of the defendants herein, with the exception of the Kern Valley Bank, having for its purpose the collection from each of said defendants of an amount alleged to be due upon their individual liability as stockholders of the said Kern Valley Bank, arising under the terms of the state constitution, and of section 322 of the Civil Code. That former action was in due course tried and thereafter appealed by the plaintiff therein to the supreme court. Upon said trial and appeal the defendants in that action successfully assailed the constitutionality of that portion of the banking act which

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purported to authorize the plaintiff therein, in his said official capacity, to institute and prosecute said action. During the time when said cause .was still pending upon appeal, the said legislature undertook to amend the banking act under which said action had been begun, the said amendment consisting of a more express declaration of the power of the superintendent of banks to institute and prosecute actions of that character, the said amendment being evidently intended to eliminate the ground of objection which had been urged in said action to the effect that the superintendent of banks under the terms of the act prior to said amendment possessed no such power. (See Stats. 1913, pp. 136-192.) After the taking effect of said amendment to the banking act (Stats. 1909, p. 87), but before the decision of the supreme court in the former suit, the plaintiff instituted the present action against the same defendants with the addition of the Kern Valley Bank. Thereafter, the supreme court handed down its decision in the said former action, which is reported in 171 Cal. 658, [154 Pac. 472], to which reference is made for a more particular statement of the facts, set forth in the identical language in the complaints in each of said actions. Upon the handing down of said decision by the supreme court, the defendants herein moved the trial court in which this action was pending for a judgment in their favor upon the pleadings, upon the ground that the said decision constituted the law of the ease, and that by the terms thereof the objection which was therein successfully urged to the banking act as it existed before the said amendment thereof applied equally to its amendment, the said objection being that the title, both of said act and of the amendment thereof, did not sufficiently embrace such powers as the superintendent of banks was attempting to exercise in each of said actions. The trial court sustained the contention of the defendants, as urged in said motion, and rendered judgment in their favor upon the pleadings, from which judgment the plaintiff has prosecuted this appeal.