3 N.W.2d 430 | Minn. | 1942
The judgment of dismissal was based upon a finding by the trial court that in a proceeding instituted by Cashman under Mason *270 St. 1927, § 8025, et seq., to obtain an assessment against stockholders of the bank, "the issue as to whether or not said Cashman had an unpaid claim as a creditor against said bank was fully litigated and finally determined against said Cashman," and that "said Cashman and the plaintiff herein are now precluded from litigating said matter again."
In the assessment proceeding, the present defendant intervened, contending (1) that the statute of limitations had run against the enforcement of stockholders' liability; and (2) that the receiver was entitled to an equitable setoff against Cashman exceeding the latter's claim against the bank's estate. Upon both issues the trial court found for defendant and ordered the assessment proceeding dismissed. Cashman appealed to this court from an order denying his motion for a new trial, and the order was affirmed. However, the court discussed only the question whether the statute of limitations had run, saying (In re Dissolution of First State Bank of Correll,
Here, plaintiff argues first that in the assessment proceeding the court lacked jurisdiction to determine finally whether Cashman had an unpaid claim against the bank's estate. In support of this argument, he cites cases holding that an assessment order does not bind any individual stockholder in respect to defenses personal to himself. Thus it was said in Straw Ellsworth Mfg. Co. v. L. D. Kilbourne B. S. Co.
But plaintiff contends that because this court, in affirming the order of the lower court in the assessment proceeding, confined discussion to the question whether the statute of limitations had run against the enforcement of stockholder's liability, the finding of the lower court in that proceeding that Cashman's claim was satisfied is not res judicata
here, since there was no review by this court of that finding. Plaintiff's theory seems to be that, even though the order was affirmed, it is the opinion of the supreme court rather than the findings and judgment of the lower court which determines what issues were decided. In this he is mistaken. Reeves Co. v. Lamm Brothers,
Affirmed.