KIMBALL v. DUNN et al.

KIMBALL v. DUNN et al. (Circuit Court, S. D. New York. October 31, 1898.) National Bank in Charge of Examiner — Lf.vy of Executions. The fact tbat a national bank, for whicli no receiver has yet been appointed, is in charge of an examiner appointed by the comptroller to investigate its affairs, does not exempt its tangible assets from levy under execution upon final judgment. This was a suit in equity by William H. Kimball, as examiner in charge of a national bank, against Thomas J. Dunn and others, to enjoin the levying of an execution on the property of the bank. The cause was heard on a motion for a preliminary injunction. Herman Aaron, for the motion. George Coggill, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. The statutes provide for the appointment of a receiver of a national bank. Rev. St. U. S. § 5234. But it appears that in the cause at bar no receiver has yet been appointed. I am unable to assent to the proposition that because the comptroller of the currency, in conformity to the provision of section 5240, has appointed plaintiff as a suitable person to make an examination of the affairs of the bank, plaintiff thereby'’ became a temporary receiver. Until the comptroller decides to put the bank into the hands of a receiver, under section 5234, there is nothing in the statutes to support the contention that its tangible assets are exempt from levy under execution upon final judgment. Section 5242, by its terms, applies apparently only to “attachment, injunction, and execution * * * before final judgment.” Motion denied.