48 Colo. 557 | Colo. | 1910
delivered the opinion'of the court:
Action by a stockholder of a national bank against the corporation and its officers for an accounting. From a judgment dismissing the action, plaintiff appeals. From the complaint, it appears that the bank was organized under the banking laws of the United States. It ceased doing» a banking business in 1897. It was not insolvent, practically all its obligations to depositors and other persons except stockholders having been discharged. It voluntarily went into liquidation, after having transferred its banking business to a bank organized under the laws of Colorado. In the course of its active busi.ness it acquired real estate in this and other states which it still owns and from which rentals have been received. The present officers and directors are, and at all times have been, in control of the bank and are the holders of a majority of its capital stock. Without consent or knowledge on the part of the plaintiff, they have, at various times, sold and conveyed to the bank certain of the real estate now held by
Upon tbe filing of tbe complaint, a notice was served upon tbe .defendant bank, and its vice-president, of an application for tbe appointment of a receiver, together with supporting affidavits, and at tbe time noted for tbe bearing all tbe defendants appeared by counsel and demurred to tbe complaint upon tbe grounds tbat plaintiff bas no legal capacity to sue as a stockholder, tbat tbe complaint does not state a cause of action, and tbat the court is without jurisdiction of tbe subject-matter. Defendants did not ask leave to file an answer before tbe bearing of this application, but relied upon their demurrer;. and when it was overruled, no request was made by them for leave to answer or file counter-affidavits before tbe application was determined. On tbe contrary, defendants then relied solely upon their demurrer. After it was overruled, tbe court appointed a receiver, who at once entered upon tbe performance of bis duties. Afterwards defendants answered, denying tbe material allegations of tbe complaint, and no attempt to have tbe order appointing a receiver vacated bas ever been made, and be continued' to act in tbat capacity and managed and disposed of the bank property till tbe action was dismissed. Upon due appli
The referee proceeded to take the evidence offered, and at its close filed his report with the court, to which plaintiff’s counsel filed exceptions, which have been treated by the parties as a motion for new trial. This motion was undisposed of for many months; but plaintiff, under the facts, is not to be held responsible or made to suffer for the delay. When it was heard, his exceptions were' overruled and the report approved. A final award of compensation to the referee for his services was made, to be paid by the receiver out of the fund collected by him, while the receiver’s own official compensation was ordered to be paid by the plaintiff in the action. Defendants made a motion to dismiss the action, which was granted, and all the costs, except those theretofore allowed by the court and paid by the receiver, were taxed to plaintiff, and the receiver was ordered to turn over all the property, or proceeds of any property which had come into his hands as receiver since his appointment, to the defendant bank, (36)
The- principal question for decision is whether the court had jurisdiction of the cause and power to appoint the receiver. Defendants contend that the district court of Mesa county was without jurisdiction of the subject-matter of the action, because the hank, being organized under the hanking laws of the United States, is not subject to the control of state tribunals, and that a receiver for a national hank can be appointed only by the comptroller of the currency. It is to be borne in mind that the hank was not a going concern. Neither was it insolvent. It owed only a small debt, which it could readily pay out of its assets, leaving' a considerable sum for distribution to its shareholders. It had ceased doing business as a hank and had gone into voluntary liquidation. The only persons who had any claim upon its assets, with the exception noted, were the stockholders. The hank held this property as a trust fund for their benefit, and the directors in office, in the capacity of trustees, were obliged so-to account to the beneficiaries. The acts charged in the complaint against the directors were not such as would authorize the comptroller of the currency, under the federal -statutes, to appoint a receiver.' The law is not as defendants contend in a case of this kind. As to those matters specified by the federal hank acts as authorizing the comptroller to appoint a receiver
Plaintiff had the legal capacity to bring this action. The general rule is, that a corporation should sue in its own name to protect corporate interests. The complamt, however, alleges that the defendant directors held a majority of the stock, and the charges of misconduct are against this majority. It would be a useless thing for plaintiff to ask the directors to have the bank itself, controlled as it was by them, institute this action. La that contingency they would virtually be both plaintiffs and defendants, and no relief would be likely to come to a complaining minority. If it be true, as the complaint alleges, that defendants were derelict in duty and were seeking to obtam a preference for themselves as against the minority stockholders in the disposi
Besides, defendants virtually acquiesced in the appointment of a receiver when, at his request, they consented to the appointment of a referee to take testimony in the action. So, also, when they stipulated for the sale of the property by the receiver and in other,respects consented to his management of the bank’s property. The point made by them that these acts of consent and acquiescehce upon their part are not binding because jurisdiction of the subject-matter cannot be conferred by consent, is without merit. The court unquestionably, as we have already said, had jurisdiction of the subject-matter, and defendants’ acquiescence estops them to complain of any alleged irregularity in the appointment of a receiver. We are clearly of the opinion that the complaint
Plaintiff’s objection to the report of the referee is not so much to the findings made by that officer and approved by the court as it is to its incompleteness and failure to find upon all the issues, particularly a failure to state the account between the parties, which was the main object of the action and was expressly prayed in the complaint. This defect in the referee’s report was specifically called to the court’s attention by plaintiff’s objection, on motion for a new trial, in overruling - which the court virtually approved the imperfect and incomplete report of its officer. An examination of the evidence discloses that there was sufficient data therein upon which the referee might have made his findings complete in accordance with plaintiff’s request therefor. He did not do so. When plaintiff, as he did, called this matter to the court’s attention, it should have re-referred the matter to the referee with instructions to make findings upon all material issues and to state the account between the parties, or should itself have made the investigation and. modified the report and made it complete in thesé respects and stated the account. The allegations of the complaint herein-above summarized contain grave charges of mismam agement and fraudulent conduct upon the part of the directors of the bank. There were five directors. The evidence discloses that the president and cashier were largely indebted to the bank, that they were insolvent, and that a third director, son of the president, while he held some of the stock in his own name, in fact did not own it, but that it belonged to his father, the president. The evidence tended to show, and the referee might have found — and, indeed, there can be but little doubt about it — that the directors
In dismissing- the action and as part of its final judgment or decree, the court taxed as costs to be paid out of the fund collected by the receiver, a part of the compensation allowed the referee and certain witnesses and experts; and other costs, expenses and commissions of the receiver and others were taxed against plaintiff. Although this court has held that where final judgment goes against the plaintiff who has procured the appointment of a receiver, the costs and expenses incurred by him in managing the property may be taxed against the plaintiff where there is no receiver’s fund applicable thereto, and while there are conflicting decisions on taxation of costs of a receivership, wrongfully secured, or where the
The judgment must be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. In the event of a new trial, the evidence already taken by the respective parties may be used and read, and they may take such additional evidence upon the issues as they see fit. Reversed cmd remanded.
Chief Justice Steele and Mr. Justice Musser concur.