Statement of the Case. est thereon from the time of such loss, and costs herein, be rendered and entered by this court in this case in favor of said corporation, the California National Bank of San Francisco, and that said corporation, and this plaintiff do have such further order, decree, judgment and relief as may be meet and agreeable to equity." The complaint further averred, and it was so found on the hearing of the case, that Chetwood had, prior to the commencement of such suit, requested the officers of the bank, the receiver thereof and the Comptroller of the Currency, severally, to bring and prosecute the same against the alleged delinquent officers, which requests were refused. It appears from an affidavit attached to the return that "the receiver, when so made a defendant, and as such served with process, answered, and followed his refusal to bring the suit by opposition and hostility thereto." On April 27, 1894, the trial court ordered judgment in favor of the plaintiff for the benefit of the bank against Thomas, Thompson and Wilson, and referred the case to a referee to examine and report in respect of the amount for which judgment should be entered. The referee reported to the court a total loss of $166,919 suffered by the bank by reason of the acts and omissions of the defendants, but not the amount for which each was severally responsible. Thereafterwards Thompson and Wilson paid into court $27,500, whereupon the court made an order dismissing them from the suit, and on November 20, 1894, rendered judgment for the plaintiff for the use and benefit of the bank against Thomas for $139,419, with interest at seven per cent per annum from December 15, 1888, being for the sum of $166,919, reported by the referee, less the $27,500 paid by Thompson and Wilson. Thomas appealed from this judgment to the Supreme Court of California, and that court held that the dismissal of Thompson.and Wilson was a retraxit and operated in law as a full satisfaction of the cause of action, and upon that ground reversed the judgment against Thomas and entered a personal judgment against Chetwood for costs, etc. Chetwood v. California National Bank, 113 California, 414; 45 Pac. Rep. Statement of the Case. 704. To review that judgment a writ of error was sued out from this court, bearing date September 24, 1896. This writ of error was allowed by Mr. Justice Field, who approved a bond and signed a citation running in the name of the California National Bank of San Francisco as plaintiff in error to Richard P. Thomas as defendant in error, service of which on Thomas, Stateler, S. P. Young and R. A. Wilson was accepted. Chetwood also accepted service, but asked that he be entered as a plaintiff in error, and that for that purpose the writ of error be amended. The case was docketed by the clerk of this court as No. 673, under the title of Califor nia National Bank of San Francisco v. Richard P. Thomas. The receiver of the bank never authorized or aided in the prosecution of the suit, nor claimed nor attempted to take control or possession thereof, nor of the judgment entered therein, nor of any part of the $27,500 paid into the state court by Thompson and Wilson. The Comptroller of the Currency in July, 1894, had paid all the creditors of the bank whose claims had been proven or allowed, except shareholders who might have been creditors of the bank, together with all the expenses of the receivership, and the redemption of the bank's notes having been provided for by deposit of lawful money therefor with the United States Treasurer, a meeting of the stockholders of the bank was called pursuant to the act of August 3, 1892, c. 360, 27 Stat. 345, at which Thomas, holding nine hundred and sixty shares of the stock and controlling sixty shares more, threw, as is alleged, one thousand and twenty votes, being a majority, in favor of discontinuing the receiver, and of the selection of T. K. Stateler as agent of the bank to succeed the receiver, Young, in the settlement of its affairs. Stateler was thereupon declared elected, Chetwood protesting, and on February 26, 1895, the Comptroller and the receiver executed an assignment of all assets of said bank then in their hands or subject to their order or control to said Stateler. On March 19, 1895, and pending the appeal of Thomas in the Supreme Court of the State, Stateler voluntarily appeared in the Superior Court of San Francisco and moved for an Statement of the Case. order directing that so much of the $27,500 as then remained in that court be paid over to him, which motion was resisted by petitioner and denied by the Superior Court. From this order Stateler appealed to the Supreme Court of the State, which reversed it and directed that the money be paid over to him. 113 California, 649. Petitioner thereupon sued out a writ of error from this court, which was allowed by the Chief Justice of California, citation duly issued and served, bond approved and, as the money was in custody of the Superior Court and drawing interest, the writ was made a supersedeas. The record was filed in this court and the cause docketed as No. 674. This writ bears date October 17, and appears to have been allowed October 22. January 4, 1896, while both the appeals of Thomas and Stateler were pending in the Supreme Court of the State and undetermined, Stateler filed an original bill in the Circuit Court of the United States for the District of California against the bank and Chetwood, alleging that as such agent he was an officer of the United States, and that he had sole power to act for the bank and its shareholders, to the exclusion of the stockholders, directors and officers thereof. This bill contained, among other allegations, the following: "Your orator further avers that heretofore, to wit, on the 21st day of February, 1889, and prior to the commencement of any of the suits herein before mentioned, S. P. Young, the receiver of the defendant banking association, did file in this honorable court a petition entitled 'In re application of receiver of the California National Bank for the sale of personal property,' and which said petition, among other things, recited that said California National Banking Association had been duly adjudged insolvent by the Comptroller of the Currency of the United States; that the petitioner therein had been by said Comptroller duly appointed the receiver of such association, and that said petitioner had duly qualified as such receiver and entered upon the performance of the duties of his office, and that as such receiver there had come into his possession certain personal property of said banking association, and thereupon in and by said petition the said receiver of Statement of the Case. said banking association thereupon submitted himself and the affairs of said banking association to the jurisdiction of this honorable court, as provided by the national banking laws of the United States and the amendments thereof, and thereupon asked for and obtained from this honorable court an order authorizing him to sell the property described in said petition, and to apply the proceeds thereof as provided by law, and that the filing of said petition was a necessary step in the winding up of the affairs of said defendant banking association; that thereafter and from time to time the said receiver did obtain from this honorable court orders directing him to sell various pieces of property belonging to said banking association and to compromise various debts due to said banking association and did, as such receiver, institute in this honorable court suits to collect moneys due said banking association, all of which said proceedings and suits were necessary steps in the winding up of the affairs of said defendant banking association, and, as such receiver, did in every way and as provided by the Revised Statutes of the United States and the amendments thereto hold himself amenable to the orders of this honorable court; and your orator avers that the jurisdiction of this honorable court over the affairs of said defendant banking association did attach on the 21st day of February, 1889, as aforesaid, and that the affairs of said defendant banking association have never been wound up, but that your orator is now engaged in winding up the affairs of said defendant banking association, and that it will be necessary for him to bring various suits to collect the outstanding assets of said association, and, among others, a suit against the defendant John Chetwood, Jr., to recover the moneys so as aforesaid due and owing from him to the defendant banking association, and that it is necessary for him to bring this suit and to obtain the relief herein prayed for, so that he can proceed to wind up the affairs of said defendant banking association without further interference from the defendants John Chetwood, Jr., or the alleged board of directors of said insolvent association." The prayer was for a decree adjudging that complainant “is Statement of the Case. the duly elected, qualified and acting agent of the defendant bank, to wit, the California National Bank of San Francisco, and as such exclusively entitled to have and receive in his custody and under his control all the moneys and property of said bank, and to collect the outstanding indebtedness due to said bank, whether the same be evidenced by open accounts, bills, notes or judgments of record, to the end that the affairs of the bank may be wound up, its property converted into money, and its money distributed among its shareholders, as provided by the national banking laws of the United States; that all the acts of the defendant banking association through its alleged board of directors, as herein set forth, since the appointment of a receiver to take charge of its affairs, as herein set forth, be adjudged null and void, and that its board of directors has no authority to take any action touching the affairs of the association; that the said bank, its board of directors, officers and employés, and the said John Chetwood, Jr., his agent and servants, and each and every of their said attorneys, solicitors and counsellors, be forever restrained and enjoined from denying the rights of your orator to the said office of agent of said banking association, and from denying his right as such to the exclusive control of the assets of said bank, as above set forth, and from commencing any further litigation against him as such agent, and from prosecuting or defending any action heretofore brought by them or either of them against your orator as such agent touching his right to said office and touching his exclusive right as such agent to collect the assets of said bank, except the suit, now pending in this court, brought by them as aforesaid against your orator on the 12th day of November, 1895, and which suit your orator hereby especially exempts from the operation of any injunction that may hereafter be granted herein, and that the said bank, its board of directors, officers and employés, and the said defendant Chetwood, his agents and servants, and each and every of their said attorneys, solicitors and counsellors, be forever restrained and enjoined from commencing any further suits to collect any outstanding debts due the said bank, whether the same VOL. CLXV-29 |