22 Colo. App. 244 | Colo. Ct. App. | 1912
Appellee, a creditor of The Western Bank, an insolvent banking corporation, brought suit, on behalf of all of the creditors of the'bank, against the corporation and many persons, as alleged owners of its capital stock, to enforce the liability imposed by
A few months after the entry of the decree, the plaintiff caused a writ of attachment to be issued, in the action, to the sheriff of the City and County of Denver, against the property of appellant, for the amount of her liability as alleged in the second amended complaint; and the writ was levied on property belonging to appellant. Soon after the attachment was levied, an alias summons was issued in the cause, in which appellant was named as a defendant, and an effort was made to obtain service by publication of the summons. It appeared from the affidavit and order for publication that appellant was a party to the action, and a non-resident of the state. Upon motion of attorneys for appellant, specially appearing for that purpose, the attempted ser.vice by publication was ordered to be set aside, for the reason, as stated in the order, that appellant had not properly been made a defendant in the cause. The motion to quash the service of the summons stated that appellant resided in the state of Massachusetts. A few days later, on motion of plaintiff’s attorneys, an order was entered permitting the plaintiff to make appellant a defendant, and to refile his second amended complaint, “in which the said Katharine W. Toll appears as a party defendant,” and authorizing summons to be issued as provided by law.” The second amended complaint was thereupon marked “refiled,” and another summons was issued, and placed in the hands of the sheriff of the City and County of Denver, for service. Upon due return of that summons by the officer, certifying that, after diligent search, he was unable to find ap
The assignments of errors alleged on the record here challenge the jurisdiction of the court to render the judgment or decree against appellant. The argument in support of the assignments proceeds generally upon the propositions that appellant never became a party to the action, so as to authorize the attachment of her property, and the issuing of summons against her therein, that the order made by the court, after quashing the first attempted publication of the alias summons, and when several terms of the court had elapsed since the first judgment was rendered in the cause, permitting the second amended complaint to be “re-filed,” and summons to be issued, was in excess of the jurisdiction of the court, and that all of the proceedings shown by the record, so far as they undertook or purport to affect appellant, or her property, including the judgment against her were coram non judice and void.
“It is settled in this jurisdiction, by Zang v. Wyant, 25 Colo., 551, that the proper procedure to enforce the liability of stockholders in an insolvent bank for debts of the corporation, under the statute here under consideration, is by a suit in equity by a creditor or creditors, for the benefit of all creditors, and against all the stockholders.” Adams v. Clark, 36 Colo., 65. See also Buenz v. Cook, 15 Colo., 34; Richardson v. Boot, 18 Colo. App., 140.
The suit was administrative in character, the main purpose being to enforce contribution by as many of the stockholders as practicable, within the limit of liability fixed by the statute, to the satisfaction of the whole indebtedness of the insolvent bank in excess of its assets. The judgment was rendered for the benefit of all the creditors, but against the stockholders severally. For reasons not necessary to discuss, it was frequently impossible, or at least impracticable, to acquire jurisdiction of the persons or property of all of the stockholders, within a reasonable time after the institution of the action. The proceeding being for the benefit of creditors, they were entitled to as speedy relief against defendants
2. It was shown by the averments of the second amended complaint that appellant was a proper party defendant to the suit. She was therein named as a defendant, "and judgment was prayed against her. Undue importance seems to have been at
?>. It is true that the order authorizing the “refiling” of the second amended complaint was irregular, but it cannot be said that any sribstantial right of appellant was injuriously affected by the irregularity. The plaintiff had the legal right, upon this record, to renew the effort to obtain service, by proper proceedings to that end, upon the quashing of the first attempted service by publication of summons, and that right was recognized by the subsequent orders and proceedings in the cause. The truth is, that the confusion in the record, at this point, was the result of the mistaken position assumed by counsel for appellant in both of their motions to quash the service of summons by publication, and still strenuously urged in argument here, that appellant was never made a party to the action. We think that, under the liberal intendments of the code, she ought not to be permitted to derive an advantage from errors or irregularities, which were the direct result of her own action. * * * no service of summons shall be set aside or quashed for any technical error, defect or omission, either in the summons or in the service of the summons, which error,
Counsel for appellant have not pointed out, in their argument, any defect or illegality in the summons, or in the return thereof, or the affidavit or order for service by publication, or the publication itself. The court correctly held that the publication of the summons was sufficient constructive ser-' vice to authorize a judgment against appellant, en-forcible against her property attached in the cause.
4. Notwithstanding the objections raised in arr grunent here, appellant had all the notice of the commencement and pendency of the action against her, •that the plaintiff was able to give, and all that the law required to support the judgment rendered. The contention that, before appellant could be made a party defendant, she must have had notice of an application for that purpose, is not sound, and finds no support whatever in our code of practice. "With full opportunity to appear and defend, she saw fit to rely finally on a special motion to set aside' the service. She “had her day in court,” borrowing the words of her counsel, and has no cause for complaint in that regard. The-court did not err in overruling the special motion to quash the service by publication; and, no further appearance having been made
Affirmed.