Millisack v. Moore

76 Mo. App. 528 | Mo. Ct. App. | 1898

Ellison, J.

Plaintiff was a depositor in the Sherman County Bank in the state of Kansas and'defendant was a stockholder in said bank residing in Missouri. The bank had failed and had been placed in the hands of a receiver when plaintiff sued the bank there and obtained judgment. He then brought the present suit on said judgment against defendant, who as before stated, was a stockholder in the bank, relying upon the liability of a stockholder for the deposit debts of the bank. Judgment was rendered for plaintiff in the trial court.

Btng:\abui’tynrf partiesolder' Defendant makes four points against the judgment. First, that the liability of the stockholder is an asset of the bank and can only be sued upon by the receiver. The point is not well taken. The rule is that the liability is for the benefit of the depositor and may be sued upon by him direct, the receiver- of the bank not being a competent party plaintiff, since the amount to be recovered does not belong to the bank, it being an additional security for the individual depositor. Smith on Receivers, sec. 78; Thompson on Liability of Stockholders, see. 342; Morawetz on Corps., sec. 869; Beach on Corps., see. 716.

J™d|mentI:°flndmgo court. The second complaint is that the district court of Kansas had no jurisdiction to render the judgment sued on on account of the service made by the sheriff. It is difficult to understand jus-|j w]!at is meant by this objection as it is not elaborated by argument. We however discover no error in the service. It seems the suit in Kansas was against both the bank and the receivers. The service was had on the bank by serving the president and also on the receivers. But in addition to this the district court of Kansas made a special adjudication of the matter of service and adjudged it to have been had as provided by law. We rule the point against defendant.

Btnísuíbiiitynof fme«st.lders: clenc^Tó/peti"The nest objection relates to the court’s having allowed interest. We rule this point also against the defendant.- We do not consider the case of Coquard v. Pendergrast, 47 Mo. App. 243, as sustaining the point as here applied. If the stockholder who is the debtor, fails to pay the claim of the creditor, when suit is brought against him as here, he becomes liable for interest from the commencement of the suit, notwithstanding the addition of interest to his principal liability increases the amount which the law has put upon him by reason of his becoming a stockholder. It will draw interest unless paid at the institution of the suit. 3 Thompson Com. on Corps., sec. 3133. Some objection was taken to the sufficiency of the petition in that it did not state a cause of action. We think it not well taken. The-judgment is affirmed.

All concur.