
    COLE et v KUHLMAN et
    Ohio Appeals, 6th Dist, Lucas Co>
    No 2804.
    Decided Jan 8, 1934
    Deeds & Cole, Toledo, and Julius Jacobs, for plaintiffs in error.
    Fi'aser, Hiett, Wall & Effler, Toledo, Smith, Baker, Effler & Eastman, Toledo, ’ Tracy, Chapman & Welles, Toledo, and Williams, Eversman & Morgan, Toledo, for defendants in error.
   OPINION

By RICHARDS, J.

The amended petition contains no averment of any demand being made upon the Superintendent of Banks to bring the action nor any averment that he wrongfully failed or refused to bring the action or was in any manner in default in not commencing such an action. After the Superintendent of Banks had taken possession of the bank by reason of its insolvency and was proceeding to administer its assets for the benefit of creditors, the law imposes on him the primary duty to bring such action whenever the facts are such as to justify the same, and in the absence of such default on his part, depositors have no right to bring or maintain the action. Such was the holding of this court in a case heard in Cleveland, entitled Feldman v The Standard Trust Bank of Cleveland et, 46 Oh Ap 67, (15 Abs 1). It is true that was an action brought by a depositor to enforce the double liability of stockholders, but the principle is similar to this case. Motion to certify the above case to the Supreme Court was overruled. In the opinion in that case this court cited Isaac v Marcus, 258 N. Y., 257, which was a case brought against the directors, involving precisely the same questions as the casé at bar.

The plaintiffs do not have legal capacity to maintain the action and without the averments above mentioned the amended petition does not state a cause of action.

Judgment affirmed.

WILLIAMS and LLOYD, JJ, concur.  