
    Trustees of Ohio Wesleyan University v. The State, ex rel. Fulton, Supt. of Banks. Young v. The State, ex rel. Fulton, Supt. of Banks. Pickrel v. The State, ex rel. Fulton, Supt. of Banks. Sellars v. The State, ex rel. Fulton, Supt. of Banks. Bunnell v. The State, ex rel. Fulton, Supt. of Banks. (Two eases.) Horstman v. The State, ex rel. Fulton, Supt. of Banks. (Two cases.)
    
      (Decided December 17, 1934.)
    
      Mr. Fred L. Rosamond and Messrs. Pickrel, Schaeffer, Harshman S Young, for plaintiffs in error.
    
      Mr. John W. Bricher, attorney general, Mr. S. J. Kusworm, Mr. D. W. Iddings and Messrs. Estabrooh, Finn & McKee, for defendants in error.
   By the Court.

The above entitled actions are now-being determined in this court on proceedings in error from the judgment of the Common Pleas Court of Montgomery county. In the court below the parties appeared in an order the reverse of that held here, and, for convenience, will be so designated; that is Superintendent of Banks, plaintiff, and stockholders, defendants.

On June 21, 1932, Irá J. Fulton, as Superintendent of Banks in and for the state of Ohio, filed his petition against stockholders of The Union Trust Company, of Dayton, some two hundred in number, seeking to have determined and fixed the statutory double liability of each stockholder on the basis of the amount of stock owned by each. As above indicated, eight of the number are prosecuting error in this court from the final judgment. Very voluminous and comprehensive briefs have been filed by counsel representing the respective parties. In addition there are also presented the written opinions of the trial courts on the various questions determined by them, to which orders and judgments exceptions were reserved, and all are now presented here on review.

The Union Trust Company of Dayton was a banking institution, and the double liability of stockholders is invoked by virtue of Section 3, Article XIII, of the Constitution of Ohio, as amended in 1912, the pertinent part of which section reads as follows:

“That stockholders of corporations authorized to receive money on deposit shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporations, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.”

The Supreme Court in the case of Lang v. Osborn Bank, 100 Ohio St., 51, 125 N. E., 105, has declared that the above constitutional provision is self-executing:

“The provision of Section 3, Article XIII of the Constitution as amended September 3, 1912, and in force January 1, 1913, pertaining to ‘corporations authorized to receive money on deposit’ is self executing.”

To same effect see Allen v. Scott, Supt. of Banks, 104 Ohio St., 436, 135 N. E., 683; Snider v. United Banking & Trust Co., 124 Ohio St., 375, 178 N. E., 840.

The Legislature, under the banking code, has enacted the above provisions of the Constitution into statute law, Section 710-75, G-eneral Code, in substantially the same language, a part of which is here quoted:

“Stockholders of banks shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such bank, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.”

It is also provided by legislative enactment that the Superintendent of Banks shall have the power, under certain conditions, to collect the double liability of stockholders. The last paragraph of Section 710-75, above cited, contains the f ollowing provision:

“At any time after taking possession of a bank for the purpose of liquidation when the superintendent of banks ascertains that the assets of such bank will be insufficient to pay its debts and liabilities he may enforce the individual liability of the stockholders. ’

Also in the last paragraph of Section 710-95, General Code (108 Ohio Laws, pt. 1, 103), there appears the following:

“And may, if necessary to pay the debts of such bank, enforce the individual liability of the stockholders.”

Section 710-89, General Code, provides the conditions under which the Superintendent of Banks may take possession of the business and property of any bank to which the act is applicable. Nine different specifications are set forth.

The right of the Superintendent of Banks to enforce such individual liability only applies when he has taken charge of the property and business of the corporation for the purpose of liquidation. Snider v. United Banking & Trust Co., supra, third paragraph of the syllabus.

A reading of the petition would indicate that the superintendent in taking possession of the business and property of The Union Trust Company did so by virtue of Subdivisions 3 and 6 of the above specifications of the Code, although other subdivisions may also be applicable. The superintendent may take possession of the bank whenever it shall appear that the bank “is in an unsound or unsafe condition to transact its business” (Subdivision 3) or “has become insolvent” (Subdivision 6).

The Supreme Court in Lang v. Osborn Bank, supra, in the third paragraph of the syllabus, declares that the “superintendent of banks is by statute made a proper party to bring such action,” referring to the statute creating double liability of stockholders of the bank.

Parts of the following paragraphs of the petition are attacked by a motion to strike, or, in the alternative, to make more definite and certain.

“Now comes the State of Ohio, on relation of Ira J. Pulton, the duly appointed and acting superintendent of banks of the State of Ohio, and says that on the 31st day of October, 1931, plaintiff took over for liquidation pursuant to Section 710-89 of the General Code of Ohio, The Union Trust Company, of Dayton, Ohio, and thereby became vested with full title to and possession of the property and assets of said The Union Trust Company, of Dayton, Ohio.”

“Said The Union Trust Company, of Dayton, Ohio, was a corporation duly organized and existing under and by virtue of the laws of Ohio prior to October 31, 1931, and did a general banking business, at Dayton, Ohio, until said October 31,1931, when it was found to be in an unsound and unsafe condition for the transaction of its business and insolvent by the plaintiff.”

“Plaintiff avers that, after making a full and complete investigation of the financial condition of said The Union Trust Company, of Dayton, Ohio, he has determined that the assets of said The Union Trust Company, of Dayton, Ohio, plus the full amount which could be realized by reason of the double liability of the stockholders thereof would not be sufficient to pay its liabilities in full and it therefore becomes necessary to collect the full amount of the superadded double liability of said shares of stock to apply on the payment of said obligations.”

Specification No. 1 asks to strike the following portion of the above quoted first paragraph because the same consists of conclusions of law and avers no issuable fact and is immaterial:

“Took over for liquidation pursuant to Section 710-89 of the General Code of Ohio, The Union Trust Company, of Dayton, Ohio, and thereby became vested with full title to and possession of the property and assets of said The Union Trust Company, of Dayton, Ohio.”

Specification No. 2 asks to strike the following as contained in the above quoted second paragraph of the petition, because statements of evidence are not issuable facts and are immaterial:

“When it was found to be in an unsound and unsafe condition for the transaction of its business and insolvent by the plaintiff.”

Specification No. 3 asks to strike from the petition the following from the third paragraph, because the same consists of evidentiary and not issuable facts, and conclusions of law that are immaterial:

“Has determined that the assets of said The Union Trust Company, of Dayton, Ohio, plus the full amount which could be realized by reason of the double liability of the stockholders thereof would not be sufficient to pay its liabilities in full and it therefore becomes necessary to collect the full amount of the superadded double liability of said shares of stock to apply on the payment of said obligations.”

As an alternative, the motion requests that if specification No. 4 be overruled, that plaintiff then be required to make definite and certain the petition by averring therein what condition, or conditions, if any, out of those enumerated in said Section 710-89, existed in fact, and caused plaintiff to take over as alleged, and vested him with title as alleged.

Specification No. 5 in the alternative requests that if Numbers 1 to 4 be overruled, plaintiff then be required to make the petition more definite and certain by averring therein:

1. The facts which constituted said unsafeness and unsoundness;

2. The facts then existing which constituted said insolvency.

Specification No. 6 is in the alternative, and asks that if specification No. 3 be overruled plaintiff then be required to make the petition definite and certain by averring therein:

1. What constituted the liabilities mentioned as existing and making necessary an assessment upon stockholders.

2. The amount of such liabilities' at the time of said alleged determination.

3. The amount whereby the alleged liabilities exceeded the assets and resources of said The Union Trust Company.

4. The resulting deficiency claimed by plaintiff to require a 100 per cent, assessment of stockholders in order to satisfy same.

In the memorandum accompanying, Specifications 1, 4 and 5 are combined for discussion, and attention is called to the fact that the pleader does not use the language of the statute, or such as would have like import. It is claimed that the words “took over” are not the equivalent of “after taking possession,” as provided by Section 710-75; that the words “became vested” state a pure conclusion of law; that the language “pursuant to Section 710-89” is not an allegation of fact, but a mere conclusion; that the phrase “found to be in an unsound and unsafe condition” is not a direct averment of the fact that the bank was in an unsound condition. Also that the allegation that the plaintiff “has determined” falls short as an allegation of fact.

If we were collaborating with counsel in prescribing a form to be used for a model in years following in eases of this character, the suggested diction of counsel for defendants would warrant very serious consideration.

In the present-day tendency to look to the substance, we are unable to conclude that tbe trial court erred in overruling defendants ’ motion to strike. The same reasoning will apply to the motion to make more definite and certain.

Taking the petition by its four corners, the conclusion is irresistible that the defendants were fully and adequately advised as to the nature and scope of the action against them.

Very generally motions to strike and make more specific and certain are directed to the sound discretion of the trial court, and only when there is an abuse of this discretion can error be predicated upon such ruling. This is particularly true where the subsequent pleadings remove all possible prejudicial effect.

Thereafter defendants filed demurrer to the petition, setting out three grounds:

1. That there is a misjoinder of parties defendant.

2. For defect of parties defendant.

3. That the petition fails to state a cause of action.

The demurrers were overruled by the trial court.

Considering the general demurrer, that the petition fails to state a cause of action, practically the same question was urged as in the motion to make definite and certain.

It is our conclusion that the petition does state a cause of action, and we think no further comment is necessary.

Considering the question of misjoinder of parties and defect of parties defendant, we think the trial court was correct in overruling this special demurrer, and in support of our conclusions we adopt the very ably written opinion of the trial court. "We further refer to Baumgardner v. State, ex rel. Fulton, Supt. of Banks, 48 Ohio App., 5, 192 N. E., 349 (motion to certify denied by Supreme Court.)

The several defendants filed answers to which were attached interrogatories. Demurrers were filed to the interrogatories, and, upon hearing, the demurrers were sustained.

In the answer of the trustees of the Ohio Wesleyan University fourteen interrogatories were interposed. Accompanying the answers of the other defendants thirty-four interrogatories were filed.

The subject of interrogatories is controlled by Section 11348, General Code, which reads as follows:

“A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.”

The above section contains very broad provisions, and demurrers search the record as to whether or not the interrogatories áre “pertinent to the issue.” Applying this test, we think very few of the interrogatories under any construction could be determined “pertinent to the issue.”

The time required, the methods used, when made, the numbers and names of assistants, and their technique attending ultimate findings, were not material, and the trial court was correct in sustaining demurrers thereto.

The above reason would apply to all interrogatories except those pertaining to assets and liabilities. The averments in the answer, stating in substance that the bank was solvent and had sufficient assets to pay all of its debts and discharge all of its obligations, coupled with the further averments that the pretended determination of the Superintendent of Banks as to necessity for asserting double liability of stockholders was premature, wrongful, arbitrary and oppressive, do make the question of assets and liabilities pertinent to this affirmative defense in defendants’ answer.

However, under the provisions of Section 710-93, General Code, the Superintendent of Banks is required, upon taking possession of the property and assets of a bank, to make an inventory of the assets of such bank in triplicate, one copy to be filed in the office of the Superintendent of Banks, one in the office of the Clerk of the Common Pleas Court of the county, and one with the Auditor of State. It is the duty of the Auditor of State to immediately have such inventory verified. Thereafter, the superintendent is required to make and file similar triplicate reports showing a full and complete list of claims presented.

The presumption is that the Superintendent of Banks has complied with this provision of the Code, and thereby there would be available to the defendants the data which they now seek through an interrogatory. It could serve no useful purpose to encumber the record with this additional voluminous data.

There is the possibility that the full list of liabilities may not be so filed, if perchance the time for filing by claimants has not expired. In that event, the plaintiff should answer some one of the interrogatories by giving the amount of total liabilities. If the Superintendent of Banks has not complied with this section, then the answer should aver the fact of such non-compliance. Since the case is to be remanded, any order of the trial court on answering interrogatories now held to be pertinent will be based on compliance or non-compliance with Section 710-93, and upon the further fact as to whether or not the time has expired for presentation of claims and as to the date that the order may be made.

After sustaining demurrers to the interrogatories attached to the answers of the defendants, amended answers were filed to which interrogatories were attached. Many of these were identical in substance to the ones attached to the original answer, while others differed!

Plaintiff failed to demur to or answer these interrogatories as attached to the amended answer. Counsel for defendants interposed a motion asking that action be dismissed on account of failure to either demur to or answer the interrogatories, or in the alternative that plaintiff be ordered to demur or answer by a day fixed. The trial court overruled the motion. Plaintiff had previously filed reply to the answer. No further action was taken at any time with reference to the interrogatories.

We think that proper procedure demands that these interrogatories be either demurred to or answered, in order that defendants may preserve their record. The fact that the court had previously ruled on the interrogatories attached to the original answer did not suffice. When defendant filed an amended answer it was necessary to attach interrogatories if it was desired to save the question; otherwise it might be concluded that defendant had abandoned the request.

While the case was pending, and before trial, counsel for defendants made a demánd in writing of the plaintiff that they be allowed inspection and copy of the books, papers and documents in plaintiff’s possession and under his control, containing evidence relating to the merits of the action and defense. Counsel for plaintiff, in writing, declined to permit the inspection. Motion was interposed, asking that the court direct that such inspection be permitted. On hearing, motion was overruled. We think the inspection should have been permitted. Aside from Section 11552, General Code, this is a right that inures to the stockholders of every corporation, and the fact that this bank was in the hands of the Superintendent of Banks for liquidation would not modify or change the rule, particularly in view of the fact that action was being prosecuted against these stockholders on their claimed double liability.

We find among the papers the opinion of the Attorney General of Ohio declaring that the right of the stockholders to inspection should be permitted. Apparently, this opinion was released from the Attorney General’s office after special counsel had taken on themselves the responsibility of refusing inspection.

Of course, if we could hold with plaintiff that no defense was interposed, then the right of inspection would be immaterial, but under our conclusion that the answers do tender an issue it was error to deny the privilege.

Counsel for defendants have questioned the action of plaintiff at every stage, in the following order;

1. Motion to strike and make more definite and certain, which was overruled and exception noted.

2. General and special demurrer to the petition; both overruled and exception taken.

3. Saving exception to the sustaining of demurrer of plaintiff to interrogatories attached to answers.

4. Motion to require plaintiff to demur or answer interrogatories filed with defendants’ amended answer. Overruled, with exceptions allowed to defendants.

5. Defendants made written demand for inspection of books, documents and so forth, which demand was in writing, refused. Thereupon defendants filed application seeking order to compel right of inspection, and so forth. Motion was overruled and exceptions were saved to defendants.

6. Motion to set aside trial assignment to jury, and to try claimed equitable defenses set out in amended answer, was overruled and exceptions allowed.

7. Bequest to amend at bar on day of trial was refused and exceptions allowed.

8. Taking exception to the trial court’s directed verdict in favor of plaintiff on trial statement of counsel for defendants.

After the verdict was returned by direction of court against the several defendants, motion for new trial was duly filed, overruled, and judgment entered on verdict.

This is the final order from which proceedings in error are prosecuted in this court.

We will first consider the error complained of by reason of the trial court directing a verdict and entering judgment thereon, since the determination of this issue bears very materially on other procedural questions raised as the case progressed.

The bill of exceptions discloses that counsel for defendants in the trial statement, among other things, said to the jury:

“That the evidence will further support all the material allegations in the several defenses as set up in our amended answers.”

It necessarily follows that if the amended answers, through denials or affirmative defenses, either place in issue any of the material allegations of the petition, or affirmatively allege defense matter, then it would be error to direct a verdict on the trial statement of counsel.

Directed verdicts on trial statements are not favored except where the record discloses the fullest latitude given to counsel to adequately and correctly present to the jury all issues in the case disclosed by the pleadings.

It is always a wise precaution for counsel to say to the jury that they expect the evidence to sustain all of the averments of their pleading, since it is so very easy to overlook in the oral statement some material issues in the case. This procedure was followed in the instant case.

In effect this action of the court would mean that the answers of the several defendants failed to state a good defense, either through their denials or affirmative defenses. If the trial court was right in directing a verdict, judgment might properly have been entered upon the pleadings.

The determination of this question requires a careful examination of the pleadings, together with the determination of the law controlling.

Plaintiff in his petition, after setting out his official position, the taking over of the bank for liquidation, the acquiring possession of its property and assets on the ground that the same were found to be in an unsound condition for the transaction of its business, and that it was insolvent, and after setting forth the fact that The Union Trust Company was engaged in the banking business at Dayton, the amount of issued stock, together with the number and amount of the shares, then alleges the following:

“Plaintiff avers that, after making a full and complete investigation of the financial condition of said The Union Trust Company, of Dayton, Ohio, he has determined that the assets of said The Union Trust Company, of Dayton, Ohio, plus the full amount which could be realized by reason of the double liability of the stockholders thereof would not be sufficient to pay its liabilities in full, and it therefore becomes necessary to collect the full amount of the superadded double liability of said shares of stock to apply on the payment of said obligations. ’ ’

The petition also alleges that the defendants are stockholders, and then sets out the amount and par value of the stock owned and held by each.

The amended answers of the defendants admit the identity and office of the plaintiff, Ira J. Fulton; admit that The Union Trust Company is a corporation doing a general banking business; admit that since the above date plaintiff has proceeded with the liquidation of the business and property of the trust company; admit that the trust company has a capital stock of $1,500,000, divided into shares of the par value of $25 each; admit that some of its stockholders had.paid in full or in part the double liability claimed against them by plaintiff; admit that these defendants owned and held shares of such stock, and have not paid the double liability alleged herein; and admit that demand for payment thereof by this plaintiff has been made— all as alleged in the petition. Each and every fact averred in the petition not hereinbefore expressly admitted is denied.

In the second and third defenses of the amended answer it is specifically denied that The Union Trust Company was. or is insolvent, or that the plaintiff ascertained or found it to be in an insolvent condition. In addition it is denied that the collection of the double liability from the stockholders is necessary in order to pay the debts and obligations of the bank. This second defense sets out affirmatively that the said bank was and is solvent; that its assets are equal to or greater than its liabilities; and that the action of the plaintiff is unnecessary, unreasonable, arbitrary, unjust, inequitable and oppressive.

Counsel for the superintendent make the claim that, the defendants having admitted that they are the owners of the numbers of shares of stock as alleged in the petition, and, further, that they have not paid the double liability assessment, no other defense may be interposed. In other words, it is the contention of counsel for plaintiff, and this conclusion was concurred in by the trial court, that it is the sole province of the Superintendent of Banks to determine whether the bank is insolvent, and when he ascertains that fact so to be, and brings his action against the stockholders to recover the double liability, the only defense open to said stockholders, in the absence of wilful act and fraud, is “I do not own any stock in the bank,” or “I do own stock in the bank and have paid the double assessment.”

The Supreme Court of Ohio has not directly passed on this question.

There have been cited from both sides three cases decided by different Courts of Appeals in this state: Anderson v. State, ex rel. Gray, 12 Ohio Law Abs., 161; Cole v. State, ex rel. Fulton, 14 Ohio Law Abs., 464; State, ex rel Fulton, v. Weinberger, 44 Ohio App., 264, 185 N. E., 432.

None of these cases presents the direct question before us, but each of them involves the same subject-matter, and the principles of law announced are in point.

We have previously referred to Snider v. Banking & Trust Co., supra, wherein the Supreme Court held that the Superintendent of Banks would have no right to bring the action to enforce the stockholders’ double liability, except as he is authorized by statute.

Sections 710-75 and 710-94, General Code, grant this right of action to the superintendent. The fact that the Supreme Court has held that the provisions of Section 3, Article XIII, of the Ohio Constitution are self-executing, in and of itself does not enlarge or diminish the rights of the Superintendent of Banks. As heretofore stated, he has no rights at all, except as granted by statute. This being true, his power is bounded by the statute. This at once leads to the construction of the statute granting the power. The last paragraph of Section 710-75 reads as follows:

“At any time after taking possession of a bank for the purpose of liquidation when the superintendent of banks ascertains that the assets of such bank will be insufficient to pay its debts and liabilities he may enforce the individual liability of the stockholders.”

This provision of the section not only authorizes the Superintendent of Banks to bring the action to enforce stockholders’ double liability, but designates that he may bring such action as soon as he ascertains that the assets will be insufficient to pay its debts and liabilities. The right of the Superintendent of Banks to enforce stockholders’ liability only applies where he has taken charge of the property and business for the purpose of liquidation. Snider v. Banking & Trust Co., supra, third paragraph of the syllabus.

This court at all times has recognized that this fundamental question was of vital importance to the litigants and to others similarly situated throughout the state of Ohio. It has also recognized that the question presented was close; that because the Legislature of Ohio in enacting Sections 710-75 and 710-94, did not follow the federal statutes on similar subjects, or the New York statute in its entirety, the federal decisions and those from other states were only helpful inferentially. Upon all questions, save the one now under consideration, this court has been in substantial agreement at all times, and an opinion has long since been prepared covering all controverted questions. We were, however, in disagreement upon the main issue, a majority of the court being of the opinion that the action of the superintendent in ascertaining that the bank was insolvent was a final action, if within the bounds of discretion. When the opinion of this court was about to be released, the ease of Baumgardner v. State, ex rel. Fulton, supra, was decided by the Court of Appeals of Lucas county, the court from the Third Appellate District sitting by designation. The second and third propositions of the syllabus in that case are determinative of our question. The second proposition is as follows:

“Under the provisions of Section 710-75, General Code, and cognate sections, the taking possession of the property and business of a bank by the Superintendent of Banks for the purpose of liquidation fixes the right of the superintendent to proceed with the liquidation, and as incidental to such liquidation to ascertain whether the assets of the bank will be sufficient to pay its debts and liabilities, and to enforce the double liability of stockholders.”

The third paragraph of that syllabus reads:

“Neither the bank nor its stockholders can contest the authority or discretion of the Superintendent of Banks to proceed with the liquidation and to ascertain the necessity of enforcing double liability and determining the amount thereof other than by the exclusive remedy provided in Section 710-100, General Code.”

After the Baumgardner case had been determined in the Court of Appeals, a motion to certify was filed in the Supreme Court. Thereupon, we determined to hold the instant case until action was taken by the Supreme Court upon the Baumgardner case. ' To our surprise, and much to our regret, the Supreme Court did not see fit to admit the Baumgardner ease, although in the last year it has admitted and passed upon many cases involving questions arising under the liquidation of banks by the Superintendent of Banks.

We appreciate that upon a technical consideration of the action of the Supreme Court in refusing to admit the Baumgardner case, there is no legal significance whatever. However, we are constrained to say that, in our judgment, there is an implication to be drawn from the action of the Supreme Court which we construe to be favorable to the determination of the Court of Appeals in the Baumgardner case. As a result of the refusal of the Supreme Court to certify the record in the- Baumgardner case, the one member of this court whose opinion was at variance with the conclusion in the Baumgardner case has yielded his position and now joins the majority in following the law of the Baumgardner case. We therefore subscribe to and support the second and third propositions of the syllabus in Baumgardner v. State, supra, in so far as consistent with the other questions herein determined.

The next question for determination is as to whether the trial court was warranted under the state of the record in directing a verdict in favor of plaintiff, as prayed for in the petition.

In our judgment the averments of the second and third defenses present an issue of abuse of discretion on the part of the Superintendent of Banks. This constitutes an affirmative, defense, and the burden of proof would be upon the defendants to establish it by a preponderance of the evidence. Many of the averments in each of these defenses would not be pertinent to this issue, but after eliminating the immaterial parts thereof there still remains sufficient to present the affirmative defense of abuse of discretion. In considering this question attention is called to other portions of this opinion, wherein are set forth the rights and powers of the Superintendent of Banks. On this issue, any evidence presented on the question of the solvency or insolvency of the bank would be admissible only in so far as it bore upon the question of abuse of discretion.

The defendants say that the bank is and was solvent and able to pay all its obligations, that the Superintendent of Banks wrongfully, unreasonably, arbitrarily, unjustly, illegally and oppressively found to the contrary. This, if proven, would constitute a fraud, and under such situation the prayer of the petition should be denied. By reason of the above, we think the court was in error in directing a verdict.

Another claimed ground of error was the refusal of the court to permit further amendment at bar. In substance it was sought to add to the averment charging the plaintiff with acting arbitrarily, unlawfully and illegally the word “willful” and also the words “as he well knew.”

This request not being made until the case was being tried was not timely, and we do not think that the court committed any error in refusing such request. We doubt very much if the amendment would add anything to the pleading.' As heretofore stated, it is our view that the answer in the second and third defenses does raise the issue of abuse of discretion, and the added words will do no more.

As we understand, counsel for plaintiff were seeking to bring their, pleading within the express language of the case of Chenault v. Gray, decided by this court in January, 1933, reported in 13 Ohio Law Abs., 600.

The editor, from the opinion, prepared the following syllabus:

“Any official act of the superintendent of banks which comes within the classification of quasi judicial functions cannot be challenged unless it be averred that he acted from wilful, corrupt or malicious motive.”

It should not be understood from anything the court stated in the Chenault case that it would be necessary to use this exact language in order to raise-the issue of an abuse of discretion. As heretofore stated, the language used does raise this issue.

However, if defendants think differently, and desire to save the question, we think the court could well permit the amendment, if the request were renewed promptly.

Other claimed ground of error was the court’s refusal to set aside the trial assignment to a jury, and first try the claimed equitable defenses set out in the second or third defense of the amended answers. In support of this claimed error it is urged that under the language of Section 3, Article XIII, of the Ohio Constitution, wherein it is provided that stockholders are to be held “individually responsible, equally and ratably, and not one for another,” an accounting must be had so as to determine the prorated share to be collected from each stockholder. This is on the theory that some stockholders may be insolvent, and that unless all pay equally a 100 per cent payment by these defendants might, in effect, be paying the obligation of other stockholders in part.

Attention is called to the allegations of the petition that the full 100 per cent from all stockholders, together with the assets of the bank, will not be sufficient to pay the bank’s liabilities in full.

The last paragraph of Section 710-75, General Code, merely stipulates as a condition precedent to the bringing of the action that the bank be ascertained to be insolvent. While the power given to the Superintendent of Banks to sue is controlled by statute, yet, the section of the Code having practically the same language as Article XIII, Section 3, of the Ohio Constitution, it must so far as possible be given such construction as would inure to an individual creditor under the self-executing provisions of the section of the Constitution. In other words, after the Superintendent of Banks establishes the right to sue, from thence forward the same construction will be given to the statute as though an individual creditor on behalf of himself and others was bringing suit under the self-executing provisions of Section 3, Article XIII, of the Constitution. The above is merely illustrative and not intended to be in conflict with Fulton, Supt. of Banks, v. Wetzel, 47 Ohio App., 72, 190 N. E., 776. We accept the Wetzel case as good law.

The time at which the superintendent may bring suit to enforce the double liability is immediately following the ascertainment of insolvency. He is not required to wait until the assets are collected and distribution made to creditors, As we view it, this is the plain provision of the Code. The only limitation, either in the Code or under the Constitution, is that one stockholder can not be compelled to pay the obligations of another. If it should develop in the liquidation that the full 100 per cent is not requisite to pay the liabilities of the bank, the Superintendent of Banks might be required to impound so much of the funds as would insure that no stockholder would be paying the obligation of another.

The claims of the creditors are paramount, and should be protected to the limit. The stockholders are the owners of the bank and they are charged under the law with knowledge of their double liability. To this extent they occupy the position of debtor, and the depositors hold that of creditor. Courts should have care in promulgating a simple procedure which will guarantee to everyone their rights under the law.

For the reasons enumerated, the case will be remanded and a new trial ordered.

Judgment reversed and cause remanded.

Hornbeck, P. J., Barnes and Sherick, JJ., the latter of the Fifth Appellate District, concur.  