3 Dill. 477 | U.S. Circuit Court for the District of Iowa | 1874
orally delivered the opinion of the court, holding: • 1. That proceedings in bankruptcy are not an exclusive method of winding up insolvent corporations or companies. The bankrupt act does not, ipso facto, suspend state laws for the collection of debts. The act of congress of February 13, 1S73 (17 Stat 436), is a complete answer to the position that the sole remedy against an insolvent insurance company is in the bankruptcy court.
2. It is, perhaps, true, that where duly appointed and authorized, a receiver may, ordinarily, sue in another state. This power, when it exists, arises from comity, in the absence of special statute regulations, and it is, in general, subordinate to the right of local creditors as respects property within the jurisdiction where such a suit is brought. The effect of the bankrupt act on the general doctrine does not arise on the record before me. And in view of the uncertain nature •of the proceedings in which the present plaintiff was appointed, I give no definite •opinion concerning his powers in respect of suits brought in this district. See Booth v. Clark, 17 How. [58 U. S.] 322.
3. In this action at law, in which neither the corporation nor its stockholders other than the defendant are before the court, and in which the suit is on the contract of subscription for the entire eighty per cent alleged to be due, I am of opinion, considering the terms of that contract, and that no call ■or assessment is alleged, either by' the company before the insolvency or by the court •since, that the petition does not state a cause of action. In other words, in this action at law on the contract, there must - be a call or assessment, or something standing in the place thereof, and equivalent thereto, either by the company or by a proper court, in order to make the defendant liable. This •does not appear either by the averments of the petition or on the exhibits thereto, and hence the demurrer must be sustained, but the plaintiff may amend, and, in doing so, I advise him to set forth the charter of the company and the nature of the chancery proceeding in Illinois. Ordered accordingly.
