OpenJurist

68 US 23 Pomeroy's Lessee v. The State Bank of Indiana

68 U.S. 23

17 L.Ed. 500

1 Wall. 23

POMEROY'S LESSEE
v.
THE STATE BANK OF INDIANA.

December Term, 1863

A STATUTE of Indiana passed in 1834, enacted as follows: 'That there shall be and is hereby created and established a State Bank, to be known and styled the 'State Bank of Indians,' and shall continue as such until the first day of January, eighteen hundred and fifty-nine.' The charter further provided, that all banking powers should cease after the first day of January, 1857, 'except those incidental and necessary to collect and close up its business.'

In 1849, the bank being in possession of certain real estate, was sued in ejectment, and the suit, in December, 1862, being still pending on writ of error, in this court, which writ had been allowed in December, 1861, H. W. Chase, Esquire, signing himself Attorney for the State Bank of Indiana, in the Circuit Court for the District of Indiana, asked for the abatement of the writ upon the following suggestion, to wit: 'That since the trial of the above entitled cause in the Circuit Court for the District of Indiana, and before the prosecution of the writ of error in this behalf—to wit, on the first day of January, A.D. 1859,—the said State Bank of Indiana, named as defendant in error in said cause, being a corporation created and organized in the State of Indiana by the authority of an Act of the Legislature thereof, was dissolved and ceased to exist as such corporation, by reason of the expiration of the charter granted to said State Bank of Indiana.'

In support of this motion, he argued: The dissolution of the bank by expiration of its charter leaves no defendant; and the writ must abate. Angell and Ames1 state it as text law that 'upon the dissolution of a corporation in any mode,' 'all suits pending for or against it, abate.' They cite, in support of this statement, various cases2 which sustain the position. Lindell v. Benton,3 referred to in the note by them, as announcing a contrary doctrine, merely decides that the dissolution of a corporation after an attachment against it has been sued out, and its debtor garnished, will not operate to deprive the attachment plaintiff of a vested right in the money in the hands of the garnishee to satisfy his debt. In this case the bank itself expires in 1859. Banking powers may exist indefinitely for the purpose of closing up business. But the capacity to defend a suit is not a banking power. The expression has reference to the renewal of notes, &c., the payment of outstanding bank bills and the like.

The writ of error here is an original writ, issuing, in effect, out of this court, to bring up the record of a cause that alleged errors may be examined, and the judgment affirmed or reversed as the law may require.4 The parties in the inferior court, or their heirs or representatives, must be parties here, and to that end must be duly cited. It is true, that an attorney cannot withdraw his name from a cause, after final judgment, so as to avoid the service of the citation. But the death of his client revokes his authority to appear, and the service of a citation upon him thereafter is a nullity.

A rule of this court5 provides against the abatement of causes in error or on appeal between natural persons, by authorizing the heirs or legal representatives, as the character of the subject-matter of the litigation may require, to be made parties. But here is a corporation, civilly dead, leaving no heirs or representatives—no party upon whom process can be served, or to whom notice can be given, or no whom the judgment can operate. This is not the first instance where parties have failed to obtain the aid of this court to correct alleged errors, because there was no provision of law whereby the cause could be brought properly before the court.6

Messrs. Traphagen, Brady, and Carlisle, contra.

Mr. Justice WAYNE delivered the opinion of the court:

1

I am instructed by the court to announce it to be its opinion that there can be no abatement of the case upon the counsel's suggestion, as it is declared in the charter of the bank, that though its charter should continue as such until the first day of January, 1859, and that all its banking powers should cease after the first day of January, 1857; that it should have all the 'necessary and incidental powers to collect and close up its business,' within which we deem the rights of the plaintiff in this court to be comprehended.

2

MOTION REFUSED.

1

On Corporations, § 779.

2

Merrill v. Suffolk Bank, 31 Maine, 57; Saltmarsh v. Planters' &c. Bank, 17 Alabama, 761; and Greeley v. Smith, 3 Story, 657.

3

6 Missouri, 361.

4

2 Tidd's Practice, 1134; Conkling's Treatise, 686.

5

Rule 15.

6

Hunt v. Palao, 4 Howard, 589.