40 Neb. 274 | Neb. | 1894
This case is before us upon a rehearing. Upon the first hearing there was a judgment of reversal. The case is reported in 36 Neb., 271. In the opinion there reported the issues are disclosed by setting forth the pleadings at some
> Upon a reconsideration of the case we are entirely satisfied with the conclusion evidently reached, but not very clearly expressed, in the former opinion, that upon the uncontradicted evidence there was due from the banking company to the plaintiff a larger sum than was found by the jury. The greater portion of the amount claimed was counted upon as an account stated, and the evidence supports the averments of the petition in this regard, as it also supports the further averment of smaller sums due upon an open account. It is true that the evidence consists largely of entries upon the books of the banking company, but as against the bank at least these entries were competent evidence wherewith to charge it.
The only ground upon which the defendants in argument rely to sustain the finding oí the jury as to the amount of the recovery against the bank is that a large portion of the amount shown to be due plaintiff upon the books of the bank represents usurious interest upon plaintiffs deposits. Usury is pleaded by the defendants, but so far as there is any evidence upon the subject it is to the following effect: That one Theiss and one Whaley were at one time doing business under the name of the Northwestern Banking Company. Subsequently a copart
The argument has been chiefly directed to the case of the individual stockholders who were defendants in the action; that is, to the subject-matter of the cross-petition in error. It is.argued that there were errors in the instructions of the court upon the question of their liability; that there were’errors in the admission of certain testimony against them; and further, that no action at law would lie, prior even to the act of 1891, against a corporation and its stockholders jointly, by a single creditor, to enforce the statutory liabilty. It was intimated in the former opinion that a proceeding in equity would be the proper course to enforce that liability, if it exists. These questions, as disclosed- by the record, are serious, and none of them free from doubt; but the record comes .to us in such a shape that we, are precluded from here determining them. There is no ‘doubt that, the plaintiff was entitled to some judgment against the bank. If no remedy could be had in this action against the stockholders, the petition still stated
In Scott v. Chope, 33 Neb., 41, it was distinctly held that in an action against several persons, if the motion for a new trial be by all the defendants jointly, it. must be overruled if the verdict was good as against any one of them. The same doctrine had been announced in a number of prior cases. They were cited in Scott v. Chope and approved. This must be taken as the settled rule of this state, and is supported by a very respectable array of authorities elsewhere. The verdict against the bank was certainly correct in its direction, although not correct in its amount, and proceedings in error on behalf of the bank alone could not have resulted in its reversal. It follows, •therefore, that the error proceedings of the individual defendants were equally unavailing, and we cannot consider any of the questions affecting their rights as distinguished from those of the corporation.
The plaintiff in error contends that inasmuch as he only complained of the amount of recovery the order of reversal should only extend that far, and that the cause should be
As this cause must be remanded for error in assessing the amount of recovery, we think that justice demands a general order of reversal and a new trial of the cause, in order that the pleadings may be revised if the parties deem it proper, and the questions, which we are here precluded from determining, presented anew.
Reversed and remanded.