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First Nat. Bank of Linden v. Alston

Supreme Court of Alabama
Jan 16, 1936
231 Ala. 348 (Ala. 1936)

Opinion

3 Div. 149.

January 16, 1936.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

Rushton, Crenshaw Rushton, of Montgomery, and McKinley McDaniel, of Linden, for appellant.

The complainant has a plain and adequate remedy at law against the bank by an action of detinue to recover the bond or in trover for its conversion. Priebe v. Farmers' U. W. Co., 230 Ala. 73, 159 So. 694; First Nat. Bank v. Montgomery Cotton Mfg. Co., 211 Ala. 551, 101 So. 186. Canceling the bond and ordering a new or duplicate bond issued to complainant is in effect ordering the bank to deliver the bond to complainant, to do which the court of equity is without jurisdiction. Priebe v. Farmers' U. W. Co., supra; Yellow Pine Exp. Co. v. Sutherland-Innis Co., 141 Ala. 664, 37 So. 922. The question of jurisdiction or venue may be raised either by plea in abatement or demurrer. Crawford v. Walter, 202 Ala. 235, 80 So. 73; Riles v. Coston-Riles Lumber Co., 208 Ala. 508, 95 So. 43. Brandon is made a defendant to the suit, not as an individual, but in his official capacity as state treasurer; and the suit is in effect one against the state, which cannot be sued. Const. § 14; Comer v. Bankhead, 70 Ala. 493; State Docks Comm. v. Barnes, 225 Ala. 403, 143 So. 581; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140. A national bank can only be sued in the county of its residence. 12 U.S.C.A. § 94, Rev.St. § 5198; First Nat. Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282; Crocker v. Marine Nat. Bank, 101 Mass. 240, 3 Am.Rep. 336; Raiola v. Los Angeles First Nat. Bank, 133 Misc. 630, 233 N.Y.S. 301. Complainant's bill is in the nature of an equitable attachment, and cannot be maintained against a national bank. 12 U.S.C.A. § 91, Rev.St. § 5242; Pacific Nat. Bank v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567.

Steiner, Crum Weil and Sam Rice Baker, all of Montgomery, for appellee.

By filing a demurrer challenging the jurisdiction of the court over the subject-matter of the suit, appellant made a general appearance which conferred personal jurisdiction and waived all questions of venue. Thompson v. Wilson, 224 Ala. 299, 140 So. 439; Kyser v. American Surety Co., 213 Ala. 614, 105 So. 689; Liverpool L. G. Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Ex parte Henderson, 84 Ala. 36, 4 So. 284; 4 C.J. 1329, 1337. The state treasurer being a material defendant, the suit was properly brought in Montgomery county. Code 1923, §§ 6524, 10390; 12 U.S.C.A. § 24 (4); Cassatt v. First Nat. Bank, 153 A. 377, 9 N.J. Misc. 222; Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52; 3 R.C.L. 691. The question of the adequacy of appellee's remedy at law is not presented for consideration, for the appellate court can consider only those grounds of demurrer presented to the lower court. Pearce v. Brilliant Coal Co., 200 Ala. 630, 77 So. 4; Pippen v. Carpenter, 208 Ala. 1, 93 So. 878; McCraw v. Cooper, 215 Ala. 51, 108 So. 850; Norton v. Norton, 94 Ala. 481, 10 So. 436; Hicks v. Dowdy, 213 Ala. 559, 105 So. 656; Sherrill v. Hutson, 187 Ala. 189, 65 So. 538; Sewell v. Peavey, 187 Ala. 322, 65 So. 803. The bill contains equity, since appellee has no plain, adequate, and complete remedy at law. Code 1923, § 10390; Mayo v. Ford, 220 Ala. 426, 125 So. 684. A suit against the state treasurer to require him to perform a ministerial duty enjoined upon him by law is not a suit against the state. Code 1923, §§ 834-851; State Board v. Roquemore, 218 Ala. 120, 117 So. 757; Hall v. Blan, 227 Ala. 64, 148 So. 601; Kittredge v. Boyd, 136 Kan. 691, 18 P.(2d) 563, 93 A.L.R. 574; 59 C.J. 312. Appellee's bill is not, in any sense, in the nature of an attachment.


Bill by complainant, Alston, as executrix of the will of M. R. Bradford, deceased, and claiming to be the owner under the will of said Bradford of a certain bond issued by the state of Alabama against John Brandon, as treasurer of the state, to collect certain accrued interest and to have the change in the ownership of the bond appear in the record. Bill also avers that the First National Bank of Linden claims to be the owner or of some interest in said bond. The bill seems to conform to the requirements of section 10390 of the Code of 1923 and which gives the court of equity jurisdiction.

The chief and primary argument presented by the appellant is that the bill does not contain equity because the complainant has a plain and adequate remedy at law. There is no ground of demurrer raising this question, nor is there a general demurrer going to the equity of the bill. Apart from this, however, it is sufficient to suggest that the bill conforms to the section of the Code above cited and seeks more than a mere recovery of the bond by the complainant against the Linden Bank. Hence the case of Priebe v. Farmers' Union Warehouse Co., 230 Ala. 73, 159 So. 694, and other cases cited by appellant's counsel, are inapt.

It is also contended that, under the federal statutes ( 12 U.S.C.A. § 94), suits against a national bank can only be brought in the county district or political subdivision in which said bank is located. It was held by the United States Supreme Court in the case of Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52, that this provision of the federal statute applied to transitory and not local actions which are in the nature of suits in rem, but which are to be prosecuted where the thing on which they are founded is situated. Moreover, we doubt if that provision of the federal statute could be applicable to cases in which a national bank becomes a joint party as an incident to the enforcing of an equitable or legal right as here. As a material respondent, John Brandon, resides in Montgomery, it would be quite an anomaly to hold that, in a proceeding of this character wherein several national banks located in different counties were involved, they could not be jointly brought in in one action. We therefore hold that the bill was not improperly filed in Montgomery county under section 6524 of the Code of 1923. It may also be questionable as to whether or not the matter of jurisdiction was not waived by demurring to the bill on other grounds (Thompson v. Wilson, 224 Ala. 299, 140 So. 439), but which question is unnecessary for us to decide.

It is also urged that the federal statute forbids an attachment, injunction, or execution against a national bank before final judgment in any suit, action, or proceeding in any state, county, or municipal court ( 12 U.S.C.A. § 91). It is sufficient to say that the present proceeding does not involve an attachment or injunction.

We do not regard this bill as a suit against the state of Alabama. It is merely a suit against the state treasurer to require him to perform a ministerial duty enjoined upon him by law. State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757; Turnipseed v. Blan, 226 Ala. 549, 148 So. 116; Hall v. Blan, 227 Ala. 64, 148 So. 601.

The trial court did not err in overruling the respondent bank's demurrer to the bill of complaint, and the decree of the circuit court is affirmed.

Affirmed.

GARDNER, BOULDIN, and FOSTER, JJ., concur.


Summaries of

First Nat. Bank of Linden v. Alston

Supreme Court of Alabama
Jan 16, 1936
231 Ala. 348 (Ala. 1936)
Case details for

First Nat. Bank of Linden v. Alston

Case Details

Full title:FIRST NAT. BANK OF LINDEN v. ALSTON

Court:Supreme Court of Alabama

Date published: Jan 16, 1936

Citations

231 Ala. 348 (Ala. 1936)
165 So. 241

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