125 Neb. 867 | Neb. | 1934
This is a suit in equity brought by the receiver of an insolvent state bank to recover the stockholders’ double liability for the benefit of all unpaid creditors of the banking corporation. All the stockholders in said bank were made defendants, and judgments were entered against each for the amount of their liability as determined by their ownership of the corporate stock of the bank.
The appellants’ challenge to the right of the receiver
However, section 8038, Comp. St. 1922, was repealed in 1929. Laws 1929, ch. 38. A similar provision was enacted in 1933. Laws 1933, ch. 18, sec. 59, Comp. St. Supp. 1933, sec. 8-1,130. This suit was filed January 26, 1932, at a time when there was no statutory provision relative
The appellants complain that the suit was prematurely brought. The constitutional double liability of stockholders of insolvent state bank could not be enforced under the Constitution as it was prior to 1930, until its assets had been exhausted, and the amount due thereon had been judicially determined. Dempster v. Williams, 118 Neb. 776; Rogers v. Selleck, 117 Neb. 569; State v. Banking House of A. Castetter, 116 Neb. 610; State v. Farmers State Bank, 113 Neb. 497; Bodie v. Pollock, 110 Neb. 844. The evidence shows that all of the tangible assets of the bank were disposed of, the proceeds thereof distributed, and on January 20, 1932, the district court for Douglas county, Nebraska, judicially ascertained the exact amount justly due to the creditors of the bank from the stockholders, after applying the proceeds of all of the corporate property, and fixed that amount as $92,-821.91. But the appellants contend that there is pending a suit by the receiver against the directors of said bank to recover $174,840.76. The evidence discloses that the defendants, two of whom are appellants herein, filed demurrers to the petition, which were sustained February 26, 1932, and subsequently on July 25, 1932, plaintiff not desiring to plead further, the cause was dismissed.
The trial in the case at bar was commenced July 25, 1932, and lasted two days. Thereupon the court took the case under advisement until October 4, 1932. One question raised by demurrer in the directors’ case was that the petition itself showed that the statute of limitations had run. There is no evidence that an appeal was taken. If an appeal had been taken, there was ample time for appellants to have introduced evidence of that fact prior
Even if the judgment of the court .that the assets of the bank had been exhausted were subject to collateral attack, a question not necessary to determine here, there is no evidence here that the judgment was wrong or that there were any assets of the bank which had not been exhausted. The suit was not prematurely brought.
Another assignment of error, relating to the failure of the trial court to decree exempt the homestead and after-acquired property of one appellant, a married woman, does not present a question for determination in this case.
Affirmed.