226 P. 522 | Mont. | 1924
delivered the opinion of the court.
On April 12, 1924, J. W. Corwin, as the receiver of the Laurel State Bank of Laurel, petitioned the district court of Yellowstone county for an order authorizing him to institute and maintain appropriate actions in the courts of this state or any other state, on behalf of the creditors of the Laurel State Bank, against the stockholders of the bank for the recovery of their statutory liability in consequence of the bank’s insolvency. On the same day, G. E. Settergren, a creditor of the bank, filed objection to the granting of the receiver’s petition, and therein petitioned that he be permitted to institute such actions as are necessary in behalf of the creditors of the bank in any court outside the state of Montana. After hearing, the court granted the petition of the receiver and denied the objections and petition of Settergren, appellant herein. The appeal is from the court’s order in the premises.
The only question presented is whether the court had juris diction under the statute to order the institution of such actions by the receiver outside the state.
Section 6036, Revised Codes of 1921, as amended by Chapter 9 of the Laws of 1923, relating to the liability of stockholders in state banks, reads, in part: ‘ ‘ The stockholders of every bank
From a reading of the statute it is plain the court was wholly without jurisdiction to authorize the institution of actions outside of Montana by the receiver to recover on behalf of the creditors of the bank the statutory liability of its stockholders. The statute creates a special remedy and its meaning is plain. It warrants such actions by the receiver “in the courts of this state” alone, when the court in which the receivership is pending authorizes them.
In Cook on Stock and Stockholders, third edition, section 218, the general rule is laid down as follows: “The statutory liability of the stockholder is created exclusively for the benefit of corporate creditors. It is not to be numbered among the assets of the corporation, and the corporation has no right or interest in it. It cannot enforce it by an assessment upon the shareholders. Nor can the corporation upon the insolvency assign it to a trustee for the benefit of creditors. It is a liability running directly and immediately from the shareholders to the corporate creditors. Accordingly, a receiver of an in•solvent corporation, invested with ‘all the estate, property and equitable interests’ of the concern, has no power to enforce such a liability as this. The action to enforce can be maintained only by the creditors themselves, in their own right and for their own benefit.”
In 34 Cye., page 397, the general rule is well stated as follows: “The general rule is that such receiver, in the absence of some statutory authority, cannot sue to enforce a liability created by statute against stockholders in favor of creditors, independently of what they owe the corporation on account of their stock, and in such case the appointment of a receiver for the corporation does not affect the right of a creditor to maintain his action for the enforcement of the stockholder’s liability. ’ ’
And this court is in full accord with the doctrine announced by these authorities, in the absence of a specific statute such as Chapter 9 of the Laws of 1923, conferring specific authority upon the receiver to maintain such actions on behalf of the creditors of the corporation. Speaking through Mr. Chief Justice Brantly, it was said by this court: “By a practically unanimous line of decisions, the courts have held that, when a receiver takes charge of the assets of an insolvent, he occupies a position in no respect different from that of the insolvent prior to the appointment. He becomes merely the assignee of the insolvent, and has exactly the same rights. * # * He is the arm of the court to accomplish the distribution of the assets of the insolvent.” (Williams, Receiver, v. Johnson, 50 Mont. 7, Ann. Cas. 1916D, 595, 144 Pac. 768.) (See, also,
In 2 Morris on Banks and Banking, fifth edition, 696, it is said: “If the demand is for further contribution beyond the amount of the par value of the shares already paid or due under the original subscriptions, then it would seem that, unless the statute expressly makes the sums thus contributed assets of the corporation, and directly gives the right of collection to the receiver or trustee, the suit should be properly brought by the creditors whose claims are to be paid out of the proceeds. It is their sole and peculiar right which they are at liberty to enforce when they please or altogether to forego. There seems to be no ground upon which any other person could sustain suits of this description, and hence it has been regarded as proper for the creditors themselves to bring them.”
However, since the decisions of this court above referred to and considered by the supreme court of Wyoming in the case of Miller v. Amoretti, 26 Wyo. 170, 181 Pac. 420, the legislature has clothed such receivers with greater powers, as will be noted from reading the Act of 1923 above alluded to. The receiver may now sue in the Montana courts to recover the statutory liability of stockholders of an insolvent bank where he could not do so before. The Wyoming case above referred to does not sustain respondent’s contention, for there it was held simply that the receiver of an insolvent Montana bank, having no greater rights under the statutes of Montana then existing than an ordinary chancery receiver, could not maintain an action in a foreign state to enforce the statutory liability of a stockholder under Montana laws.
The case of Converse v. Hamilton, 224 U. S. 243, Ann. Cas. 1913D, 1292, 56 L. Ed. 749, 32 Sup. Ct. Rep. 415 [see, also, Rose’s U. S. Notes], cited and relied upon by counsel for the respondent herein, does not sustain his contention, because the
The Act of 1923 conferred additional authority other than that heretofore existing upon the receivers of banks in Montana. They were given powers not hitherto conferred upon them. For the purpose of collecting the statutory liability of stockholders of an insolvent bank, they were constituted quasi assignees and representatives of the creditors of the bank and invested with right of action against the stockholders to enforce those rights but only “in the courts of this state.” Had the legislature wished to extend the power of such receivers to other states, it could have easily said so as did the legislature of Minnesota. Since the statute expressly limits the receiver’s
■ Modified.