failure to comply sufficiently with the requirements of the statute but involved a much broader principle, namely, that no court will permit its process to be trifled with and its intelligence affronted by the offer of pleadings which any reasoning person knows can not possibly be true. This general principle applies just as well to the want of knowledge and reasonable investigation branch as to the exclusive control and means of proof branch of the statute, and the fact that the statute has been fully complied with does not affect the situation.
It is still the law and is unaffected by the Amendment of 1935. Broderick, Supt. etc. v. Allis, 26 Pa.Dist. & Co. R. 60, 65.
To apply it to the case in hand, it is obviously impossible that the defendant could have made any reasonable investigation of the fact that the Bank had been closed in 1933 without finding it out, or knowing that the Bank had closed in pursuance of proclamations by the Governor of Pennsylvania and the President of the United States. The statement that he did is patently false. It is equally false that the appointment of conservators, the taking of the Bank by the Comptroller and the appointment of receivers, all of which are matters of public record, are matters of which the means of proof are exclusively in the control of the plaintiff, or that the defendant has made reasonable investigation and been unable to ascertain the truth about them.
Paragraphs 5 to 10, inclusive, of the affidavit of defense may therefore be taken as insufficient.
The same general considerations apply to paragraphs 11 and 12, except that the defendant did not quite go to the length of denying the receipt by him of the notices. The same ruling is made as to these paragraphs.
The 13th Paragraph is admitted and the 14th goes to an immaterial matter. No special authorization is necessary for the bringing of a suit of this kind. It will be presumed that it is brought by the receiver in pursuance of the general duties imposed upon him by his office.
As to the affirmative defense, it need only be said that it involves a collateral attack upon the action of the Comptroller in taking over the Bank and raises the question of the failure of the receivers or conservators to perform their full duty in administering the affairs of the closed Bank and getting in and conserving its assets. "But this question is not open to litigation in this case." Deweese v. Smith, 8 Cir., 106 F. 438, 445, 66 L.R.A. 971.The matter is too well settled to require further citation of authority. In the recent case of Adams et al. v. Nagle, 303 U.S. 532, 58 S. Ct. 687, 82 L. Ed. 999, the Supreme Court held that in a situation somewhat like that presented by the affirmative defense here (except that it was really a great deal stronger), the stockholders would not be permitted to assert it in a bill in equity to restrain the bringing of suits to collect assessments. This decision conclusively rules on all points that could be raised in support of the defense here asserted.
The defendant also has called the attention of the Court to the Pennsylvania Act of March 28, 1867, P.L. 48, Sec. 1, 12 P.S.Pa. § 41, supplementing the state statute of limitations. The statute of limitations has not been pleaded, but if I thought the Act of 1867 were applicable I would permit an amendment.
In Kirschler v. Wainwright, 255 Pa. 525, 100 A. 484, L.R.A.1917E, 393, the Supreme Court of Pennsylvania held the Act did not apply to a similar proceeding. The Court pointed out that if it were held applicable it might operate to foreclose a right of action before it ever came into existence, since cases might arise where the assessment was made more than six years after the deposit. The Statute has to do with limitations and can not be interpreted to abolish the cause of action altogether. In addition, if the Act of 1867 were intended to apply to an action of this kind and if it were construed as the defendant says it should be, it might be that depositors whose deposits have been allowed to remain with the bank for more than the statutory period would be barred from participation in the final distribution. This would be in direct conflict with the provisions of the National Banking Law, 12 U.S.C.A. § 21 et seq., requiring ratable distribution.
Of course, the general state statute of limitations governs, but it is well settled that the receiver's right of action arises by virtue of the assessment of the Comptroller ( Johnson v. Greene, D.C., 14 F.Supp. 945), and this suit was brought well within the period of limitation running from that date.
The conclusion is that the affidavit of defense is insufficient, and judgment may be entered for the plaintiff in the amount claimed with interest from the date of the assessment.
Rule 86, 28 U.S.C.A. following section 723c, provides: "They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending * * *." I do not understand that this means that, where the question is upon pleadings all of which have been filed before the effective date of the Act, the Court's ruling will be affected by the provisions of the new rules. In addition their application to this pending action would not, in my judgment, even if authorized by the rules, be feasible.
I may say, however, that the general rule that the Court is not bound to accept statements in pleadings which are, to the common knowledge of all intelligent persons, untrue, applies just as well to the provisions of Rule 8(b), 28 U.S.C.A. following section 723c, as to pleadings under the state statute.
NOTE: The greater part of the foregoing opinion was written before the effective date of the new Rules of Civil Procedure. The only reason it was not filed then is that I ordered a reargument, which was to be limited to the single question of the effect of the Pennsylvania Act of 1867 relating to limitations.
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