132 Minn. 9 | Minn. | 1916
The Le Sueur County Co-operative Company, a corporation organized under the laws of this state, was engaged, among other things, in a general mercantile business. The stockholders thereof, as respects the debts of the corporation, are subject to the liability imposed by section 3 of article 10 of the Constitution. The corporation became insolvent and bankruptcy proceedings against it were had in the Federal court, wherein its effects and property were taken and the proceeds applied as the
Neither contention can be sustained. The stockholders are not en
The insolvency of the corporation in the case at bar appears without dispute, and its only available asset is found in the stockholders’ liability.' That this liability may be enforced notwithstanding the bankruptcy proceeding, it not having been resorted to therein, was held in Way v. Barney, 116 Minn. 285, 133 N. W. 801, 38 L.R.A. (N.S.) 648, Ann. Cas. 1913A, 719. The necessity for an assessment against the stockholders, therefore, is manifest, and the only controverted question before the court was the amount to be levied. This question is to be determined in such ease by the probable indebtedness, the probable expense of the receivership, and the number and probable solvency or insolvency of the stockholders. In the determination of these matters the court proceeds summarily, and the statute authorizes the admission of such evidence, “by affidavit or otherwise,” as will have some pertinent bearing thereon. The schedules certified by the bankruptcy court clearly show an unpaid indebtedness of over $10,000, and were proper evidence to be received. The documents disclosed facts which were before the bankruptcy court in a proceeding of which it had jurisdiction, and as a record of that court were evidence of the facts stated therein, at least proper to be received under the statute controlling this proceeding. In addition to these schedules the receiver testified that from his investigation there was in the neighborhood of $9,000 other indebtedness. The probable expense of the proceeding as sworn to in the affidavit of the receiver’s attorney will vary from $1,000 to $5,000. It is true that the affidavits in some respects contained matters of hearsay, but not to such an extent as to justify the conclusion that they were wholly incompetent as evidence under the statute. For the most part the affidavits detailed-the
The evidence upon the subject of the number of stockholders, and their names and probable solvency, is not as clear as might be desired. But it is apparent that this branch of the proceeding is not of controlling importance, for the inquiry as to the number of stockholders, and their probable solvency, is only pertinent as it may bear upon the amount of an assessment to be made. The evidence is sufficient, and we hold the assessment not so excessive as to justify interference by this court. The assessment is but the foundation for the proceedings subsequently to be brought for collection thereof if voluntary payment be not made, and when paid is applied under the order of the court. If a surplus remains after payment of debts and expenses, it is returned to the stockholders. Straw & Ellsworth Mnfg. Co. v. L. D. Kilbourne Boot & Shoe Co. supra. In view of this fact this court should interfere with an assessment only when palpably beyond all reasonable necessity.
This covers all assignments of error necessary to be mentioned. We discover no error of which appellants may complain.
Order affirmed.