Merchants' Nat. Bank v. Northwestern Mfg. & Car Co.

48 Minn. 361 | Minn. | 1892

Dickinson, J.

This is an appeal from an order sustaining demurrers by the individual defendants (stockholders of the Northwestern Manufacturing & Car Company) to the complaint. The plaintiff is a judgment creditor of that corporation, and execution in its favor has been returned unsatisfied. The defendant corporation, the car company, is insolvent. Its affairs are in the hands of a receiver, who has sold and disposed of its property, but the proceeds in the hands of the receiver are insufficent to pay more than a small percentage of its debts, including that of the plaintiff. The plaintiff, as such creditor of the corporation, seeks to recover of the individual defendants, under 1878 G. S. ch. 34, § 9, the par value of stock of the corporation for which, as is alleged, payment was never made to the corporation. It will be unnecessary to consider whether stockholders of corporations, organized as was this defendant, are subject to the provisions of the statute cited. We regard the decision in Minnesota Thresher Mfg. Co. v. Langdon, 44 Minn. 37, (46 N. W. Rep. 310,) as decisive against the plaintiff as to its right, as a creditor of the insolvent corporation whose affairs'are in the hands of a receiver, to maintain such an action in its own behalf. This right of action is not to be enforced by an individual creditor in proceedings independent of the receivership. While that action, by a creditor of this same insolvent corporation, was to recover from a stockholder funds withdrawn from the capital of the corporation, and repaid to him, it cannot be distinguished in principle from this action, which is to recover what, upon the theory of the complaint, the defendant stockholders were legally obligated to pay to the corporation as a part of its capital, but which never was so paid. The cases are not legally distinguishable from the fact that in the one the capital of the corporation which the creditor sought to reach was paid back by it to its stockholders, while in the other it always remained in the hands of the stockholders. The reasons set forth in the opinion in the Langdon Case, in support of the conclusion that while the receivership continued the right of action was in .the receiver alone, are equally applicable here, and may be referred to as reasons for the same conclusion in this case, apart from the controlling authority of that decision as a precedent.

Order affirmed. •

The chief justice did not take part in this decision.

(Opinion published 51 N. W. Rep. 119.)