96 Wis. 516 | Wis. | 1897
It is contended on the part of appellants that proceedings to enforce the statutory liability of the stockholders of a banking corporation to its creditors cannot be resorted to till the franchise of the corporation is forfeited and its assets are exhausted; that the complaint in this action does not show such facts in respect to the defendant bank, but, on the contrary, shows a considerable amount of property in the hands of its assignee in trust for creditors; hence that the requisite facts do not appear to make out a good cause of action against the stockholders.
The general principles governing the statutory liability of stockholders of a banking corporation, in Gianella v. Bigelow, ante, p. 185, have been so recently laid down by this court, citing previous adjudications on the subject, that further discussion thereof at this time is unnecessary. The statute creating the liability of the stockholders of a state banking corporation (sec. 47, ch. 479, Laws of 1852) provides as follows: “ The stockholders in every corporation or association, organized under the provisions of this act, shall be individually responsible to the amount of their respective share or shares of stock, for all its indebtedness and liabilities of every kind.” Such statute received construction at a,n early day, to the effect that “ the liability is primary and-absolute, and attaches the moment the debt is contracted by the bank — that it is a liability of all the stockholders to all the creditors, on the principle of a copartnership, the stockholders standing on substantially the same footing as though they were partners, . . . save only that the responsibility of each is limited to a sum equal to his share or shares of stock. Subject to this limitation they are answerable
In the early cases it was held that the intent of the legislature was that the equitable remedy provided by secs. 21-32, ch. 148, R. S. 1858, shall be resorted to, to enforce the statutory liability under discussion, and that such remedy is exclusive. With some changes, such sections are preserved in secs. 3223 and 3224, R. S. 1878, which are as follows:
“ Sec. 3223." Whenever any creditor ,of any corporation shall seek to charge the directors, trustees or other officers or stockholders thereof, on account of any liability created by law, he may commence and maintain an action for that purpose in the circuit court, and may at his election .join the corporation in such action.
“ Sec. 3224. The court shall proceed therein as in other •cases, and when necessary shall cause an account to be taken of the property and debts due to and from such corporation, •■and shall appoint one or more receivers, who shall possess all the powers conferred and be subject to all the obligations
Counsel for appellants are in error in respect to this being a proceeding, under secs. 3216 to 3222, to sequestrate the-stock and property of the corporation and forfeit its franchise. It is a proceeding under secs. 3223 and 3224, to charge-stockholders of the corporation on account of their personal, liability created by law.
"While such liability, as before stated, is primary and absolute, the remedy for its enforcement is in equity and governed by equitable principles clearly defined. The legislative-intent clearly was that such liability shall be enforced only so far as reasonably necessary to satisfy the liabilities of the corporation to its creditors. The language of sec. 3224 in that regard is plain, and its meaning unmistakable. It provides in mandatory language that the court shall proceed in the action to take an account of the property and debts due to and f rom the corporation, and shall appoint a receiver or-receivers if necessary, but that if it shall appear that the corporation is insolvent and that it has no assets with which to satisfy a creditor, the court may then proceed, and, without appointing any receiver, ascertain the respective liabilities of the stockholders, and enforce the same by a judgment. Such language has heretofore led to frequent expressions, without the question being directly involved, to the effect that the-liability created by law cannot be enforced at all till the assets of the corporation have all been exhausted by reducing-the same to money and making application thereof in discharge of the liabilities of the corporation, so far as the same
It is quite clear that a proper construction of secs. 3223 and 3224, notwithstanding previous expressions of the court referred to by which the point was really not decided, does not require that the assets of the corporation 'shall be fully exhausted before the creditors may proceed to judgment against the stockholders. The legislative intent obviously was that the court should so administer the affairs of the corporation as to satisfy its liabilities out of its .assets so far as practicable, and, upon the fact appearing that the stockholders’ liability would be required in order to fully pay the corporation debts, to enforce such liability, and, if necessary, by judgment against such stockholders. It is therefore sufficient to warrant proceeding to judgment in an action of this kind, that it be made to appear that the liability of the
It follows from what has preceded that the appellants’ ■contention that the complaint does not state a cause of action, because it does not show that the assets of the corporation have been exhausted, cannot be sustained.
By the Court.— The order of the superior court overruling the demurrer to the complaint is affirmed.