19 Nev. 171 | Nev. | 1885
By the Court,
This is a suit in equity brought by respondent, a judgment creditor of the Reno Savings Bank, against appellant Huffaker, to recover the amount of his unpaid subscription to the capital stock of the bank. The suit is based upon facts corresponding in all essential respects with those in Thompson v. Reno Savings Bank, ante, 103, and the decision in that case, in so far as it is applicable, will be treated as decisive of this one, without further notice.
The first objection which we are asked to consider is that the complaint does not state a case entitling the plaintiff to sue. It is urged that subscriptions to the capital stock of the corporation are payable upon a call of the company, and that a creditor, to maintain a suit of this nature, must, before instituting it, make an effort to induce the corporation to make the call, and that no proper effort in this behalf has been made. In support of this view we are referred to a number of cases holding that a stockholder or creditor of a corporation may, under certain circumstances, and to prevent a failure of justice, institute and control a suit in his own name involving the rights of the corporation, if it has refused to take action. In this class of cases the right of action is primarily in the corporation, and it is entitled to the fruits of the litigation; but the stockholder or creditor is allowed to sue in order to protect the rights or property in which he has an interest. The principle involved in these cases has no application to cases of the nature of the one at bar, which is of the nature of a creditor’s bill, brought by a plaintiff entitled in his own right to the relief which the judgment affords.
If the insolvency of the corporation set the statute in motion, sufficient time had not elapsed when this suit was commenced to bar a recovery. (Allibone v. Hager, 46 Pa. St. 48; Curry v. Woodward, 53 Ala. 371; Harmon v. Page, 62 Cal. 448; Thomp. Liab. Stock., secs. 290, 291.)
The judgment and order of the district court are affirmed.