The herald., 1896-03-15
A SAN DIEGO DECISION
The Supreme Court Affirms the Trial Court
in the Bank Case

The Supreme Court Affirms the Trial Court
in the Bank Case
Andrew J. O'Connor. receiver, plaintiff
and respondent vs.. o. 5. Witherby, defend
ant and appellant. The Consolidated
National Bank" organized under the laws
of congress, failed on June 21, 1898, and
on June 23, 1898, the United States comp
troller of the currency appointed the plain
tiff herein, O'Connor. receiver of said bank.
On October 25, 1898. the said comptroller
made an assessment for S25O,OOO equally
and rateably upon the shareholders TO the
amount of 100 per cent of the par value of
the shares of the capital stock of said bank;
and on November 25, 1898, he made an
order directing the plaintiff. as such re-
ceiver, to institute suit to enforce against
each shareholder his personal liability
under such assessment. and under that
order this action was brought. 1t is
averred in the complaint that at the
time of the failure of said bank
Defendant Witherby was shareholder to
the amount of 100 shares, represented by
certificate No. 2l1 for twenty-five shares,
and by certificate No. 212 for seventy-five
shares. Defendant denied the ownership
of said shares. There was a jury em-
paneled on the case, but at the close of
the evidence the court instructed the jury
to find a verdict for plaintiff. which was
dered for plaintiff. Defendant appeals
from the judgment and from an order de-
nying new trial. We have given due
consideration to the able and elaborate
briefs of respective counsel. but in stating
our conclusions we do not deem it neces-
sary to discuss the points made at any
great length.
The main contentious of appellant are
that the complaint is insufficient and that
the court erred in instructing the jury to
find for plaintiff.
The contention that the complaint does
not contain sufficient averrnent of nom
payment cannot be maintained. &. .
The point made by appellant that the court
erred in striking out part of his answer is
not tenable. The part stricken out was an
averment that the comptroller. in making
the assessment, acted without due infOr.
nation of the assets and liabilities of the
bank; that such assets. independent of the
liability OF the stockholders, was sufficient
10 pay all the liabilities except S125, 900,
and that a levy of so per cent upon the
capital would have been sufficient. This
averment constituted no defence. The ac-
ton of the comptroller cannot be contro-
verted against a stockholder. I.
We do not think that the judgment should
be reversed because the court instructed
the jury to find for the plaintiff.
There is no substantial conflict of evil
dence, as to the facts determinative of the
case. or such facts are admitted and then
the judgment will not be reversed for such
instruction. Although the practice is haz-
ardous, and can be sanctioned only in
the cleerest cases.
We see no disputed material facts for
the jury to pass on. and, therefore we see
no warrant for reversing the judgment OH
account of the instruction complained of.
Under these views the numerous exceptions
taken by appellant to rulings of the court,
are immaterial and need not be specially
noticed.
The judgment and order denying a new
trial are affirmed.
The decision was written by Justice Nc
Farland and concurred in by Justices
Temple and Henshaw.