67 Mo. 678 | Mo. | 1878
— This was an application by John E. Hannah, a judgment creditor of the Moberly Bank, for execution against one of its stockholders, there being, as he alleged, no property or effects of the bank whereon to levy. The application was denied and plaintiff has appealed.
It is agreed that the facts in this ease are as follows : That at the January term, 1875, of the circuit court of Randolph county the Moberly Bank, then a corporation organized under the general laws of the .State of Missouri for banking purposes, was largely indebted to various persons for money on deposit, among whom was plaintiff herein; and at said January term, 1875, of said court said Moberly Bank came into court, by its attorney, and confessed judgment separately in favor of all its creditors, among whom was plaintiff, and all of said judgments were entered up and severally consented to by said creditors and plaintiff; and it was then the agreement and understanding that W. H. "Williams, who was then acting sheriff of Randolph county, should take charge of all the property, effects and assets of every kind belonging to the said bank, under executions issued separately on said confessed judgments, and realize on said property and effects, and apply the same ratably on all such judgments and execu-tions; to all of which plaintiff was a party, and to all of which he consented; and that said W. H. Williams, as sheriff as aforesaid, under the executions issued on the judgments aforesaid, did proceed to and did take possession of and seize and levy upon all the goods, chattels, ef
George W. Keebaugh et al., plaintiff’, v. Moberly Bank, defendant.
On motion for execution against stockholders.
Now, at this' 15th day of February, 1877, come the parties, by their attorneys, and the motion heretofore filed by defendant, requiring W. II. Williams, sheriff of Randolph county, to amend the report heretofore filed by him as to collecting against Moberly Bank, is considered by the court and by said court sustained, and thereupon said report is amended so as to show that the stock books of ' said bank, containing subscription of unpaid stock, were levied on by him, under certain executions in favor of plaintiff, on the-day of-,1876, and that said stock books are now in his possession; and the said sheriff, by leave of court first had and obtained, having amended
Plaintiff, on the 5th day of .February, 1877, filed his proper motion in said Randolph circuit court, in term time, setting forth fully that defendant was a corporation ; that a judgment as aforesaid had been recovered by plaintiff, and execution issued thereon, and that defendant was insolvent, and that said execution had beeu returned, and that no property could be found whereon to levy further executions, and that the sum of fifteen hundred and sixty-one and twenty-six-hundredths dollars ($1,561.26) and interest thereon was yet due plaintiff on his said judgment, and praying the court for an order for an execution in favor of plaintiff and against W. R. Samuel, a stockholder of defendant, for the amount of the unpaid stock, amounting to the sum of $400; said motion setting forth all matters and facts necessary to set forth in making such an application; that a copy of said-motion, with a notice to said W. R. Samuel, was duly served upon him on the 20th day of January, 1877, said notice stating particularly the time and place of filing and submitting said motion in said Randolph circuit court, and all things necessary to be stated in said notice, and return of service thereof duly made by the sheriff of Randolph county; that said motion for execution was not determined at said February term, 1877, of court, but was continued generally to the next term of the court, to-wit: September term, 1877; that
The 29th section of the General Statutes, in relation to corporations, page 331, is as follows: “The process upon a judgment against any corporation shall be a fieri facias, which the sheriff or other officer shall levy on the moneys, goods and chattels, lands and tenements of such corporation, and proceed thereon as in civil eases.” Sections 20 and 21 of the statute in relation to executions, page 642, are as follows: “All account-books, accounts, notes, bills, bonds, certificates of deposit and other evidences of debt belonging to a debtor shall be liable to seizure, and, when seized, shall be placed in the hands of a suitable person, to be appointed by the court, or judge thereof in vacation, as a receiver, who shall take the same oath, execute like bond, have and perform the same powers and duties, and be subject, with his securities, to the same provisions and penalties, in all respects, as in the case of a receiver and his securities appointed in virtue of the statute providing for suits by attachment.” “ When a receiver is not appointed, the officer holding the execution shall have all the powers and perform all the duties of a receiver under the preceding section, and may commence and maintain actions in his own name as such officer on debts or evidences of debts seized.” The statute regulating receivers in suits by attachment provides that “ when notes, bills, books of account, accounts or other evidences of debt are attached, they shall be delivered to the receiver, who shall proceed to settle and collect the same, and for that
The receiver, Williams, was appointed in pursuance of sections 20 and 21 of the execution law above quoted, and no order of the court could enlarge the power conferred on him by statute. The order of the court, therefore, directing him to sue the stockholders, is of no moment, and we have only to inquire whether, under the authority conferred by the statute relating to executions, he had the right to institute such suits.
Now, under the corporation law, it is only when there is nothing- whereon to levy, under execution against the bank, that the judgment creditor can ask the court for an execution against the stockholder. Is it not patent, then, that under this construction no execution could ever issue against a stockholder on account of his unpaid stock,, and that the 11th section of the general corporation law would be rendered entirely nugatory? But this section and the section cited from the chapter on executions are in pari materia, and must be so construed as to stand together. Construing these sections together, we think it obvious that the liability of the stockholder to the bank for unpaid stock which is not due according to the terms of his subscription, and for which no calls have been made by the
Where the stockholder is in default to the bank for installments of stock, or for calls made by the directors, he stands in the attitude of any other debtor to the bank, and his debt may be seized and collected by suit, under execution against the bank, or be reached by garnishment. Such, however, does not appear to be the case here. The agreement of the parties that the sheriff’ should take charge of all the property, effects and assets of every kind belonging to said bank, under the executions issued on the judgments confessed by it, and apply the proceeds of the same ratably on all such judgments and executions, could not confer upon the sheriff or receiver authority to institute suits against stockholders when, but for such agreement, he would have no such authority ; and said agreement must, therefore, be restricted in its application to such effects and liabilities of the bank as the sheriff was, by law, authorized to collect. However desirable it may be that the entire capital of the bank should be distributed ratably among its creditors, there are some forms of proceeding in which this cannot be done. A proper agreement of the parties, or some other form of proceeding, might have accomplished that result. As the matter now stands, so far as the liability of the stockholders is concerned, it is a race of diligence. We are of the opinion that the plaintiff, Hannah, was entitled to an execution against the stockholders, and the judgment of the circuit court will, there, foie, be reversed and the cause remanded.
Reversed.