61 Neb. 454 | Neb. | 1901
This case, which was brought by the plaintiff in error to enforce two assessments made by the supreme judicial court of Massachusetts against the firm of Hayden Bros, as a member of an insolvent insurance corporation, was submitted and decided at the last term. Commonwealth
The principle of the case just cited controlled the decision in Wilson v. Seligman, 144 U. S., 41, which was an action by a creditor of an insolvent corporation to enforce a stockholder’s liability. ' The defendant Seligman, a citizen of New York, was adjudged by a Missouri court, upon facts substantially like those involved in the present case, to be a stockholder of an insolvent corporation, and a personal judgment was rendered against him. This judgment was held to be void for want of jurisdiction. The opinion, written by Mr. Justice Gray, states the grounds of the decision in the following language: “In the case at bar, the defendant never resided in Missouri, and was not served with process within the state, either upon the original writ against the corporation, or upon the motion for execution against him. He denies that he was a stockholder, and the question whether he was one was not tried or decided in the controversy between the plaintiff and the corporation, nor involved in the judgment recovered by one of those parties against the other. Under the statute of Missouri, and upon fundamental principles of jurisprudence, he is entitled to legal notice and trial of the issue whether he is a stockholder before he can be charged with personal liability as such; and personal service of the notice within the jurisdiction of the court is essential to support an order or judgment ascertaining and establishing such liability, unless he has voluntarily appeared, or otherwise waived his right to such service, which he has not done in this case.” This decision is cited with approval in the recent case of Whitman v. Oxford Nat. Bank, 176 U. S., 559.
In our opinion, the rule to be deduced from the cases referred to, and from a large number of other cases which have been examined, is that an assessment made by a court upon the stockholders of an insolvent corporation is a conclusive judicial determination only to the extent that it ascertains the amount of corporate assets and liabilities and declares the necessity for making the assessment ordered. Great Western Telegraph Co. v. Purdy, 162 U. S., 329; Howarth v. Angle, 162 N. Y., 179; Howarth v. Lombard, 175 Mass., 570; Wilson v. St. Louis & S. F. R. Co., 108 Mo., 588; Langworthy v. Garding, 74 Minn., 325; Ball v. Reese, 58 Kan., 614; Pennoyer v. Neff, 95 U. S., 714, 723. This, as we understand it, is the doctrine of Howarth v. Lombard, supra, upon which plaintiff mainly relies. In the course of the opinion Knowlton, J., after stating that stockholders are bound by a decision fixing the amount
The record of the Massachusetts court is entitled to full faith and credit only so far as jurisdiction appears or may be presumed. If the defendant was not before the court as the result of a voluntary appearance, or the service of lawful process, its relation to the corporation has not been judicially determined and is still an open question. The plaintiff might have stated a cause of action by alleging that defendant was one of its shareholders at the time the liabilities were incurred for which the assessments were made, but this it did not do. And it might have made a case by simply pleading the action of the court and relying on the presumption of jurisdiction which ordinarily results from the rendition of a judgment by a superior court, but this it also failed to do. It not only pleaded the decrees of the court, but went farther and alleged facts showing the method by which it is claimed jurisdiction of the defendant was obtained. The matters pleaded, however, disprove jurisdiction and show that the fact of membership has not been adjudicated. Our conclusion is that jurisdiction of the insurance company did not confer upon the Massachusetts court authority to render a personal judgment against Hayden Bros., and that to the extent it assumed to do so its action was void.
The judgment heretofore rendered in this court is set-aside and the judgment of the district court is
Affirmed.