213 N.W. 36 | Minn. | 1927
Laws 1925, p. 323, c. 273, amends G.S. 1923, § 8025, so as to read as follows:
"Whenever it shall be made to appear by the petition of a receiver or assignee of a corporation, or of any creditor thereof whose claim has been filed, that any constitutional, statutory, or other liability of stockholders or directors or both exists, and that it is necessary to resort to the same, the court shall appoint a time for hearing, not less than thirty nor more than sixty days thereafter, and order such notice thereof to be servedon each person against whom such liability is claimed in the samemanner a summons is served in a civil action, and said noticeshall also be published as the Court shall *448 order. That such notice shall specify in a general way the nature of the liability claimed in the petition and the amount thereof against the person upon whom it is so served. Whenever the receiver is not the petitioner, personal notice shall be given to him."
1. The petition for an assessment was verified on July 6, 1926, and was filed on July 14, 1926. The hearing was set for September 11, 1926. The order for hearing bore date June 14, 1926. It was filed July 14, 1926. The date of hearing was not within 60 days of the verification. It was within 60 days of the filing. The order for hearing bore date June 14, 1926. This is an evident clerical mistake.
If the petition was presented to the court on the date of its verification, July 6, 1926, and it bears no other date, the statutory 30-60 day provision was not observed in fixing the time of hearing. If we take the petition as having been presented on July 14, the date of its filing, and probably we may, the 30-60 day requirement was followed. But, in any event, the service of the notice, and there is not claimed to be a defect in the service, conferred jurisdiction. In a summons greater irregularities have been held not fatal. Gould v. Johnston,
2. The order for hearing recited the filing of a petition alleging that the bank was in course of liquidation by the commissioner of banks, that its probable indebtedness was $337,571.08, its probable net assets $241,847.09, the probable expense of liquidation $5,000, that its capital stock was $30,000, and was subject to assessment for the benefit of creditors, and that a 100 per cent assessment was necessary. This was a quite sufficient statement of the nature and amount of the liability claimed in the petition.
3. The statute, G.S. 1923, § 8026, provides that upon the hearing the court shall consider such evidence as may be presented, by affidavit or otherwise, upon the nature and probable extent of the indebtedness, the probable expense of litigation, the probable amount *449 of available assets, the parties liable as stockholders, the nature and extent of their liability, and their probable solvency or responsibility; and if it appears that the available assets, or such amount as may be realized therefrom within a reasonable time, will be insufficient to pay the expenses and indebtedness in full without delay, it shall order a ratable assessment upon all parties liable as stockholders.
In determining whether there should be an assessment and, if so, the amount of it, assets and liabilities must be compared. In making the comparison the trial court deals to some extent with probabilities. Farwell, O.K. Co. v. Goodhue County Co-op. Co.
The witness who testified as to the bank's assets and liabilities was a special deputy examiner under the commissioner of banks. He had been in charge of the liquidation of the Hanover bank for five months, and had previous banking experience. He testified in part from personal knowledge, but largely from his investigation of the bank's condition as respects assets and liabilities and therefore his judgment was based on information obtained from others. His testimony was competent and helpful. In valuing it there is involved the personal equation; and the degree of its helpfulness is affected by the capacity and character of the witness which the trial court was in position to estimate.
4. It was for the commissioner to prove the necessity of an assessment. This was held in Drovers State Bank v. Drovers C.L. Inv. Co.
5. The defendants claim that the bank made loans excessive under G.S. 1923, § 7677, prohibiting loans to single individuals in excess of 15 per cent of the capital and surplus. They refer to L. 1925, p. 322, c. 272, § 1, providing that no assessment shall be made against any stockholder for any liability incurred outside of the scope of the powers of the corporation. The argument is that the excessive loans were ultra vires and the stockholders thus far released. The argument takes us nowhere. The wrongful acts of the bank in the respect stated did not create liabilities to be proved against the bank. At the most they created bad though valid assets, not liabilities within the 1925 act.
6. The defendants claim that the bank dissipated assets which should be returned to the estate, and that when so returned an assessment will not or may not be required, and so the assessment is premature. The trial court has found the necessity of an assessment. The evidence as to the recovery of dissipated assets is not such as to affect the finding. And, besides, the statute, G.S. 1923, § 8026, provides for an assessment "if it appears that the available assets, or such amount as may be realized therefrom within a reasonable time, will be insufficient to pay such expenses and indebtedness in full and without delay." When a bank fails the rights of the stockholders are guarded; but the rights of the creditors have active recognition. The statute intends that the stockholders may be required to respond without undue delay and that they may not put upon depositors and creditors the burden of awaiting long or uncertain litigation.
7. It is hardly necessary to say that all the assets of the bank are conserved regardless of the valuation put upon them by the court; and if it chance that the assessment produces more than is necessary to discharge debts and costs of administration, either because the assets are more or the liabilities less than anticipated, *451
there is an adjustment. Finch, Van S. McC. v. Vanasek,
Order affirmed.