Opinion
13085
April 1, 1931.
Before DENNIS, J., Williamsburg, July, 1930. Reversed and remanded with directions.
Action by H.D. Shaw for himself and other depositors of the Bank of Kingstree against F.W. Fairey and others. From an order overruling demurrer to the petition, defendants appeal.
Messrs. H.E. Davis, Lee Shuler, Hinds Meadors, F.R. Hemingway and J.M. McIntosh, for appellants, cite: Remedy under 36 Stat., 199, is exclusive in Receiver: 158 S.C. 90; 155 S.E., 277. Act deals with remedy only and is retroactive: 90 S.E., 694; 116 S.E., 645; 10 S.E., 1005; 10 S.E., 1007; 25 R.C.L., 939, 791; 36 Cyc., 1213-1214; 55 A.L.R., 1059; 54 L.Ed., 240; 51 L.Ed., 1163; 32 S.E., 647. Remedial statutes must be liberally construed: 149 S.C. 178; 149 S.C. 234.
Messrs. Logan Grace and Jno. I. Cosgrove, for respondent, cite: Suit on stockholder's liability is right of depositors: 53 S.C. 589; 138 S.C. 415; 140 S.E., 37. Act will not be construed as retroactive unless expressly made so: 33 S.C. 375; 87 S.C. 289; 91 S.C. 347; 123 S. `C., 120; 135 S.C. 225; 36 Cyc., 1213; 24 R.C.L., 787.
April 1, 1931. The opinion of the Court was delivered by
This action was commenced by the plaintiff, a depositor of the Bank of Kingstree, for himself and all other depositors, in November, 1929, in the Court of Common Pleas for Williamsburg County, against the stockholders of said bank, to recover for the depositors the statutory liability of the stockholders. The bank closed its doors and ceased to do business in June, 1925. The action is in the nature of a creditor's bill in equity. The defendant stockholders demurred to the complaint upon the ground that the Act of 1929, 36 Stat., 199, vested the exclusive right to institute such an action in the receiver of the bank, it appearing upon the face of the complaint that a receiver had been appointed. The demurrer was heard by his Honor, Judge Dennis, who overruled it.
The case of Branchville Motor Co. v. Adden, 158 S.C. 90, 155 S.E., 277, is conclusive of the issue; the demurrer should have been sustained.
The judgment of this Court is that the order of his Honor, Judge Dennis, be reversed, and that the case be remanded to the Circuit Court, with leave to the plaintiff to apply to the Circuit Court for an order amending their complaint substituting the receiver in the place of the present plaintiff, or, if he may be so advised, for leave to file a supplemental complaint conforming as near as may be with the opinion of the Court filed in the case of Fischer v. Chisolm, 159 S.C. 395, 157 S.E., 139, filed March 6, 1931.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.