55 Wis. 598 | Wis. | 1882
The following opinion was filed, upon the appeal from the order refusing to set aside the judgment:
We are disposed to hold that the defendant Burnham made out a case of excusable neglect within the statute (sec. 2832, R. S.), and should have been let in to defend. It is true, he was personally served with process when the suit was commenced, in April, 1862. It likewise appears-that an answer was served by the firm of Butler, Buttrick & Oottrill for the defendants, including Burnham. But the affidavit of Mr. Oottrill fully explains how this mistake was made. It shows conclusively — as does the affidavit of Burn-ham — that this firm was not retained by Bwrnham, and had no authority whatever to represent him in the action. We shall not refer to the circumstances under which the
The next question to be considered is, does the verified answer served with the motion papers set up a defense? It is claimed by plaintiff’s counsel that it does not. The material clause of the answer consists of a denial that Burnham was, on the 12th day of Uovember, 1859, when the written promise set forth in the amended complaint was executed by the president of the bank, a stockholder of the bank, or owned any stock whatever therein; or that he was a stockholder of said bank, or owned any stock therein, on the ■3d “day of January, 1861 (when the second cause of action accrued), or that he was ever a stockholder of said bank, or ■owned any stock whatever therein, prior to either of said two last mentioned dates.
It is very apparent that both the complaint and proposed answer go upon the theory that the shareholders when the
The question whether or not one who was a stockholder when the debt accrued, but had transferred his stock in good faith before suit was commenced, was liable, is a point which has not been decided by this court. ¥e have indicated our opinion that it is the stockholder when the suit is commenced who is chargeable to the amount of his stock.
In Coleman v. White, 14 Wis., 700, a creditor of the bank brought an action at law against the stockholder to recover a debt due from the bank. The court decided that the remedy was by a suit in equity in which all the creditors should join, •or one or more should sue for the benefit of all, and that the action should be against the bank and all the stockholders. There was no occasion to consider the question whether a ■stockholder who had transferred his stock before suit brought was liable, and it was not discussed. It is true, the chief justice, in the opinion, says that the liability of the stockholder was primary and absolute, attaching the moment the •debt was contracted by the bank. But that remark was made when considering the remedy to be adopted to enforce .the liability of the stockholders. So in Cleveland v. Bank, 17 Wis., 545, the question decided was whether a creditor of the bank, without having obtained a judgment at law against it, ■could maintain the action pointed out in Coleman v. White. It was held he could. But neither in that case was it necessary to determine whether the liability was to be enforced against the stockholder when the debt was contracted, or the person owning the stock when the suit was commenced. 'That point is not even alluded to in the opinion by the chief justice. The same remark is true of the case of Merchants' Bank v. Chandler, 19 Wis., 435.
In the last case the chief justice, while considering the objections to the complaint, that there was a defect of parties
By ch. 242, Laws of 1861, the liability of a stockholder was continued for six months after he had transferred his stock. This amendment to the banking law, which was submitted to and approved by the electors of the state, clearly shows that the understanding was previously that a stockholder who made a bona fide transfer of his stock before suit brought was exonerated from all liability. Whether that law could continue the liability of a stockholder who had sold his stock before it took effect is not a question presented for decision now. It is admitted by all the counsel that the assets and property of the bank must be first exhausted before the stockholders who are liable can be called upon to make good any deficiency. The proceedings on the reference in this case do not seem to be regular, but as the defendant should be let in to make his defense, that matter becomes unimportant.
It follows from these views that the order of the circuit court must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
By the Court.— So ordered.
Upon the appeal from the judgment, the following opinion was filed:
This is an appeal from a judgment. There is no bill of exceptions, and we can only look to see if there
By the Court.— The appeal is dismissed.