72 Neb. 81 | Neb. | 1904
This action was commenced in the district court for Douglas county, by the Hamilton National Bank and certain other designated creditors of the American Loan & Trust Company, for themselves and all others similarly situated, against that corporation and its stockholders, to settle and determine the constitutional liability of said stockholders, and fix the amount due from each of them thereunder; to appoint a receiver to collect the sums so found due, and apply the fund thus realized to the payment of certain judgments which the plaintiffs had theretofore obtained against said corporation. A trial of the case resulted in a judgment for the defendants, and the plaintiffs appealed to this court where the judgment of the trial court was reversed, and it was held that the Ameri
On the second trial the defendants abandoned their contention that the insolvent corporation was not a banking institution, and offered no evidence or argument on that question, but relied alone upon their former defense of estoppel or res judicata. No attack having been made on that part of our former judgment declaring the American Loan & Trust Company a banking institution that question must be treated as finally settled, and therefore requires no further consideration. It follows that the only question left for our determination is whether the proceedings in the United States circuit court for the district of Nebraska in the case of John A. Or Away v. The American Loan & Trust Company, which are pleaded by the defendants by the way of an estoppel or former adjudication, constitute a defense to this action. Ordinarily our former judgment would likewise be decisive of that question, but appellants having introduced considerable new evidence in addition to that produced by them on the former trial, it is now contended by them that we must resolve that issue in their favor. In order to correctly determine this matter it is necessary for us to look to the record of the case in the federal court. It appears that on the 10th day of May, 1894, John A. Ordway and others, stockholders in the Loan & Trust Company, commenced an action in the circuit
To show that the liability of the stockholders was in fact litigated, the appellants called the district judge, before whom the federal court proceedings were had, as a witness. His testimony show's that the matter of the constitutional liability of the stockholders was argued, and to some extent considered; that it was his opinion that the corporation was not a banking institution, and that such view of the case was one of the considerations which moved him to overrule the motion and objections, and deny the plaintiffs heroin the right to file their petitions and litigate that question. It is also shown by his evidence that the case liad been pending in his court for many years; that he desired to have an immediate and final disposition of it, and therefore overruled the motion and objections, and discharged the receiver. Prom a fair consideration of all of the evidence it seems clear that the proceedings in that case do not constitute a bar to the prosecution of this action. The rule is well settled that the determination of a motion or a summary application is not res judicata so as to prevent the parties from drawing the same matters in question again in the more regular form of an action.
It is also contended that the plaintiffs herein had the right to intervene in the circuit court and present for determination in that action the question of the stockholders’ liability, and that having failed to do so, they are estopped to present the matter in this proceeding. As was said in our former opinion:
“We are not prepared to carry the rule to the extent sought by counsel. The receiver appointed by the circuit court for the trust company was authorized and directed to collect and convert into money the assets of the corporation. He took the place of the regularly constituted officers of the corporation and had the same right to proceed against any of the stockholders that the officers of the corporation had. He could have proceeded against any of the stockholders for the collection of any balance remaining due from them to the corporation on subscriptions for stock, and could have collected any assessments legally made against the stockholders. In short, it was his duty, under the directions of the court, to convert all the assets of the corporation into such form as would enable them to be used for the satisfaction of the debts existing against the corporation. The liability of the stockholders created by the constitution was not one existing in favor of the corporation, but in favor of the creditors.”
It is clear that this provision of the constitution does not increase the capital stock or the financial resources of the corporation. Its only object is to provide an additional fund for the security of its creditors. This double liability is placed upon the stockholders solely for the benefit of the company’s creditors. The officers and agents of the corporation can not dispose of or control the fund thus created; they can not collect it by assessment upon the shareholders, nor can they assign it to a trustee for the
“Certainly it cannot be asserted with any reasonable support, that this peculiar liability imposed by the statute upon those who became shareholders of a banking association organized under the'existing law, is in any sense an asset, right or interest of the bank which it, as an insolvent debtor, can by its deed of assignment pass to its assignee, or in any manner vest the enforcement thereof in him. In the absence of some statutory provision conferring the right, neither the corporation nor its assignee, nor receiver can enforce such a liability as that in question.55
It has been held, however, that notwithstanding this liability was a subject over which the receiver ordinarily had no jurisdiction, that a proceeding to enforce this liability might very properly be instituted by a receiver appointed by the court for that special purpose. Or that the action may be maintained by one creditor for himself and on behalf of all others. Without doubt the receiver appointed by the circuit court for the trust company, after the debts against the corporation had been judicially ascertained, and its property exhausted, could have proceeded to enforce the stockholders5 liability in question herein if he had been directed to do so by the court. But in that event it would have been necessary to remove the then acting receiver and appoint a disinterested person in his stead. This the court refused to do. And it is sufficient to say that the plaintiffs herein are not estopped to litigate the questions involved in this action by reason of the proceedings in the case in the federal court.
For the foregoing reasons, the judgment of the district court is right, and is therefore
Affirmed.