59 Kan. 275 | Kan. | 1898
This was a proceeding instituted under section 50, chapter 66, General Statutes 1897, by the defendants in error as judgment creditors of the People’s Bank of Larned, Kan., against the plaintiff in error as a stockholder of the Bank, to enforce the collection of the judgment by execution.
The questions we are asked to consider are presented in the form of a case-made. A transcript of the proceedings resulting in the judgment against the Bank is incorporated in the case-made, not, however, in the form of evidence introduced or offered upon the trial of the motion for leave to issue execution, but as an integral part of a record made up of the proceedings against the bank and also those against the stockholder. We are, therefore, unable to review many of the questions discussed by counsel for plaintiff in error. The case-made contains the record of two distinct and independent proceedings ; one against ■the People’s Bank, the other against the plaintiff in ■error as one of its stockholders.
The fact that the cause of action against the plain.tiff in error grows out of his liability as a stockholder of the Bank to pay the judgment rendered against it, does not make the 'action against the Bank and the one against himself an entire and indivisible proceeding. In the case of Howell v. Manglesdorf, 33 Kan. 194, 5 Pac. 759, it was decided that the notice re
"While the proceeding is summary in its character, and its maintenance contingent upon the insolvency of the corporation, or upon the rendition of a judgment against the corporation and the return of an execution thereon of nulla bona, yet we cannot regard it as an interlocutory or auxiliary proceeding in the action against the corporation. In the action against the corporation no notice of its pendency is given to the stockholder ; he is not directly interested in the action, as his liability is only secondary to the corporation, and exists alone by reason of this statutory provision, and of that provision of the constitution- in pursuance of which the statute is enacted. (Const. Art. 12, sec. 2.) His liability to the creditors-of the corporation is in the nature of a guaranty; the-action or proceeding to enforce the same does not accrue until the execution upon the judgment against the principal is returned unsatisfied. We think that the proceeding against the stockholder, whatever remedy may be employed, is an independent one.”
Counsel for plaintiff in error discuss some other questions growing out of the claimed dissolution of the People’s Bank, and also discuss the truth of the sheriff’s return of service upon the Bank. As to the first of these matters the discussion is predicated wholly upon the record of the proceeding against the Bank, which, as already explained, we are unable to review. The same is in great part true as to the sheriff’s return. So far as the falsity of the return may be shown by the record of the proceeding in question, we are likewise unable to take it into account. However, it will be presently examined in the light of some of the oral testimony taken upon the trial of the motion to charge the stockholder.
The judgment against the People’s Bank was rendered upon service of summons made June 20, 1893, upon one L. A. Choat, as secretary of c J Bank. The plaintiff in error claim-Q(j t}iat Was not secretary at that time, and upon the trial of the motion for leave to issue execution he sought to prove the falsity of the sheriff’s return of service in that respect. The following questions were asked, answers given and rulings of court made :
Ques. “Mr. Choat, do you know who was the secretary of the People’s Bank of Larned, Kansas, or whether it had a secretary in June, 1893?” Ans. “No, sir, I do n’t.”
Said Albert H. Boyd moved to strike out the answer of the witness, which motion was sustained by the court, to which ruling the said John Schnack duly excepted.
Q. “I will ask you if you know whether it had a secretary at that time?”
Albert H. Boyd objected to this question as incompetent, irrelevant and immaterial and not the best evidence, which objection was sustained by the court, to which ruling the said John Schnack duly excepted.
Q. “I will ask you if you are the same L. A. Choat who is plaintiff in the case of L. A. Choat v. Albert H. Boyd et al.?” A. “Yes, sir.”
Q,. “I will ask you whether or not you were secretary in June, 1893, of that bank corporation?” A. “Well, I don’t consider I was.”
Said Albert H. Boyd moved to strike out the answer of the witness as not responsive to the question, which motion was sustained by the court, to which ruling the said John Schnack duly excepted.
The judgment of the court below is reversed with directions to award the plaintiff in error a new trial of the cause.