Upon rehearing granted and further consideration of the statute controlling in this case, the Court is of the opinion that in view of the language and purpose of the statute the judgment herein should be reversed.
Section 1, Chapter 6807, Acts of 1915, as amended by Section 19, Chapter 13576, Acts of 1929, Section 6102 (4162) Perm. Supp. 1936 to C.G.L. contains the following:
"On becoming satisfied, from the reports furnished to him by a State bank examiner, or upon other satisfactory evidence thereof, that any bank, banking firm, banker, banking or trust company, or corporation doing business in this State under the State laws, has become insolvent and is in default, or that the affairs of any bank, banker, banking firm or trust company or corporation doing business in this State, under such State laws, is in an unsound condition, or threatened with insolvency because of illegal or unsafe investments, or that its liabilities exceed its assets, or that it is transacting business without authority of law or in violation of law, or if the directors of any bank, banking or trust company, or corporation, or any banker or the management of any banking firm doing business in this State under the State laws, shall knowingly violate, or knowingly permit any of its officers, agents or servants to violate any of the provisions of law relative to such bank, bankers, banking firms, banking or trust companies, or corporations doing business in this State, the rights, privileges and franchises shall be subject to be forfeited, and the State Comptroller *Page 179 may in his discretion forthwith designate and appoint a liquidator to take charge of the assets and affairs of such bank, * * * The Comptroller, immediately upon appointing such liquidator, shall serve notice upon the president, or upon any vice-president or cashier, or upon any director or other person having the charge or management of any such bank, banker, banking firm, banking or trust company, or corporation, informing him or them in such notice of his action in appointing such liquidator, and notifying him or them or it that he would apply on a date therein named, not to exceed ten days from the date of service of such notice, to some circuit judge having jurisdiction over the same, for an order confirming his action and the appointment of a liquidator for such banking institution and such bank, banking firm, or banking or trust company, or corporation may, at such hearing, contest before such circuit judge the rightfulness and legality of such action of the Comptroller in appointing such liquidator. (Ch. 6807, Acts May 27, 1915, Sec. 1; Ch. 13576, Acts 1929, Sec. 19.)"
The statute provides that "on becoming satisfied * * * that any bank * * * has become insolvent and is in default, * * * or that its liabilities exceed its assets," etc., * * * the State Comptroller may in his discretion forthwith designate and appoint a liquidator to take charge of the assets and affairs of such bank * * *. * * * The Comptroller, immediately upon appointing such liquidator, shall serve notice upon the president, or upon any vice-president or cashier, or upon any director or other person having the charge or management of any such bank * * * informing him or them in such notice of his action in appointing such liquidator, and notifying him or them or it that he would apply on a date therein named, not to exceed ten days from the date of service of such notice, to some circuit judge *Page 180 having jurisdiction over the same, for an order confirming his action and the appointment of a liquidator for such banking institution, and such bank * * * may, at such hearing, contest before such circuit judge the rightfulness and legality of such action of the Comptroller in appointing such liquidator."
The statute provides for notice and an adversary contest and hearing before a circuit Judge who acts judicially in determining "the rightfulness and legality" of the action of the Comptroller in determining the bank "has become insolvent and is in default," etc., and in appointing the liquidator. When such judicial determination is made, it becomes res adjudicata unless reversed or otherwise superseded or amended or modified by appropriate judicial review.
The order of the Circuit Judge is as follows:
"IN THE CIRCUIT COURT OF THE FOURTEENTH CIRCUIT IN AND FOR JACKSON COUNTY, FLORIDA. IN CHANCERY.
"J.M. LEE, COMPTROLLER STATE OF FLORIDA,
"v.
"MERCHANTS AND PLANTERS BANK, SNEADS, FLORIDA.
"ORDER CONFIRMING APPOINTMENT OF LIQUIDATOR.
"This cause coming on to be heard upon petition of J.M. Lee, Comptroller of the State of Florida, for an Order confirming the appointment of the Liquidator for the Merchants and Planters Bank, Sneads, Florida, by the said Comptroller, and it appearing by evidence submitted, that the said corporation is in default, and that its liabilities exceed its assets, and that the President of the said bank has waived further consideration and consented to the immediate appointment of a Liquidator as aforesaid, and the Court being fully advised in the premises;
"It is thereupon ordered, adjudged and decreed that the appointment of W.B. Bedenbaugh as Liquidator for the *Page 181 said Merchants and Planters Bank, Sneads, by the Comptroller of the State, is hereby approved and confirmed, and the said Liquidator is hereby vested with all the powers conferred upon Receivers or Liquidators for banks under the Laws of the State of Florida, subject to the restrictions contained in such Laws.
"DONE AND ORDERED IN CHAMBERS OF MARIANNA, FLORIDA, this the 3rd day of September, A.D. 7935.
"E.C. WELCH, Circuit Judge."
It does not appear that this order did not become resadjudicata as to the stockholders of the bank who were represented by the president of the bank in the hearing before the Circuit Judge when he made the above order in which it is stated: "it appearing by evidence submitted, that the said corporation is in default, and that its liabilities exceed its assets," and wherein "it is thereupon ordered, adjudged and decreed that the appointment of" the liquidator "by the Comptroller of the State, is hereby approved and confirmed, and the said liquidator is hereby vested with all the powers conferred upon Receivers or Liquidators for banks under the laws of the State of Florida, subject to the restrictions contained in such laws."
Such adjudication, unaffected by appropriate judicial proceedings, became and remains the controlling decision, rendering the pleas filed in this cause inappropriate and immaterial.
In this general connection see Adams, as Receiver, v. Nagle, decided by the U.S. Supreme Court March 28, 1938, and not yet published.
The demurrer to such pleas should have been sustained.
Judgment reversed on rehearing.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN and BUFORD, J.J., concur. *Page 182
CHAPMAN, J., dissents.