113 Cal. 649 | Cal. | 1896
This is an appeal from an order made in the above-entitled case after the entry of final judgment therein.
The following facts are necessary to an understanding of the contention: The California National Bank of San Francisco was insolvent, and its affairs were in the hands of a receiver, appointed by the comptroller of the currency at the time when Chetwood, as a stockholder of the bank, instituted this action on its behalf against certain directors, to recover damages for moneys alleged to have been lost to the bank by reason of their mismanagement of its affairs. The receiver continued in charge of the affairs of the bank, and was made a party defendant in the action. Thereafter, at a stockholders’ meeting, it was determined that the receiver should not be continued in office to wind up the affairs of the association, and that an agent should be elected for that purpose, and the appellant Stateler was elected such agent. The authority for these proceedings is found in the act of Congress, which provides as follows (27 c U. S. Stats, at Large,, c. 360, sec. 3, p. 345): Whenever any association shall have been placed in the hands of a receiver, and when the comptroller of the currency shall have paid to each and every creditor of such association, not including shareholders who are creditors of such association, whose claim or claims as such creditor shall have been proved and allowed as therein prescribed, the full amount of such claim and all expenses of the receivership, and the redemption of the circulating notes of such association shall have been provided for by depositing lawful moneys of the United States with the treasurer of the United States, the comptroller of the currency shall call a meeting of the shareholders of such association by giving notice thereof, etc. At such meeting the shareholders shall
The appellant Stateler received from the comptroller of the currency and from Young, the receiver of the California National Bank, the certificate, deed, assignment, and transfer contemplated by the act, which recited that the shareholders of the bank, called to meeting by the comptroller, after due notice given as required by law, had elected an agent for the bank as provided by the act, that Stateler was duly elected such agent, and the required bonds had been executed and filed by the shareholders to the satisfaction of the comptroller, as required by law. Stateler thereupon entered upon the discharge of the duties of his trust, and, after the entry of judgment in the case of Chetwood v. California Nat. Bank, ante, p. 414, petitioned the court for an order requiring Chetwood to turn over to him, as agent of the bank, $27,500 received by Chetwood in that action. The court refusing to make the order, this appeal is taken.
Considerable attention is devoted in the briefs to a discussion of the regularity and validity of the proceedings of the shareholders which terminated in the election of Stateler as agent, and the assignment to him by the comptroller, and the receiver of the assets of the corporation. Into these questions we do not deem it necessary to enter. By the provisions of the act itself Stateler succeeded the receiver in the performance of the duties which otherwise would have pertained to the receiver. Though chosen by the stockholders, he received his commission as agent from the comptroller, with whom a bond was filed for the faithful performance of his trust. In the conduct of that trust he is placed under the direction and control of the circuit court, to which he must apply before he can compromise debts or claims of the corporation, and before which he must go to make his report and receive his discharge. The agent, therefore, stands in loco the receiver, and is in fact thes receiver under a varied form of
Such being the case, and Stateler being de facto the agent, and presenting his commission from the comptroller reciting his appointment and the regularity of the proceedings attending it, the question of the regularity of his appointment is not one to be raised upon collateral attack in this action.
Under this condition of affairs it still remains to be considered whether he is entitled to have paid over to him the moneys that had been collected. The circumstances under which the $27,500 were paid have been fully set forth in the opinion filed in another appeal in this action. (Chetwood v. California Nat. Bank, ante, p. 414.)
The shareholder who sues on behalf of the corporation is unquestionably entitled to conduct, manage, and control the litigation until a final determination thereof. Thereafter, in the case of a corporation not under disability, and where no good reason appears to the court why it should not be allowed to take into possession and dispose of the judgment recovered (Fox v. Hale & Norcross etc. Co., 108 Cal. 475), it becomes the duty of the shareholder, after reasonable allowance made for costs and expenses of litigation, to restore to the corporation the funds in his possession. In this case, while the corporation, as a corporation, was still in existence, it was not conducting or operating its business, and its assets under the laws of the United States had passed into the hands of
If we were to accept the statement of respondent’s brief in this regard, no difficulty would here be presented. Respondent states “ that Chetwood prosecuted this present action which resulted in judgments severally against Thompson for $20,000, Wilson for $7,500, and Thomas for $139,738”; but in fact there was no judgment severally or collectively entered against Thompson and Wilson, or either of them, for $20,000 or $7,500, or for any other sum whatsoever. As set forth in the opinion upon the former appeal above referred to, after the court had ordered judgment against the three, and appointed a referee to take an accounting to fix the amount thereof, Thompson and Wilson procured from plaintiff a judgment of dismissal in the nature of a retraxit by the payment to him of $27,500. The only judgments which were entered in that case were the judgments of dismissal in favor of Thompson and Wilson, and the judgment against Thomas for. $139,000, but, as in the former opinion discussed and decided, the payment of $27,500 was a satisfaction of plaintiff’s claim against the three defendants, and the defendant Thomas became entitled to a judgment in his favor thereby. That litigation then and there came to an end—as to the defendants Thompson and Wilson because they had paid $27,500 for a retraxit of the cause of action in tort
The order is reversed, with directions to the trial court to enter the order prayed for, after making reasonable allowance to plaintiff Chetwood for his costs, disbursements, and attorney’s fees in the said action, as contemplated by law.
Temple, J., and McFarland, J., concurred.
Hearing in Bank denied.