19 S.D. 474 | S.D. | 1905
This is an appeal by - the .plaintiff-from; an Order 'sustaining the defendants’ demurrer to its complaint. The com plaint states, in substance, that the' plaintiff is a corporation' duly organized under and by virtue of the banking laws'of. the United States; .that the Minnekahta.State Bank was in-May, 1899, and for years prior thereto, a banking association or'Corporation organized and existin'g under and by virtue of the laws of the State of South Dakota, and doing business in, the’city of Hot Springs; that said bank' was organized with'a capital stock of $25,000, divided into 250 shares of 'the par value of $100; that defendant James Halley was on, prior, and subsequent to said date a stockholder in said state bank, owning and'having on the records of said bank 20-shares of stock Of the par value of $2,000; that -the plaintiff is the owner and holder of a judgment against said state bank, duly entered in the circuit court of Pall River county on May 6, -1899, for the sum of over $7,000, and that no part of the same had been paid,, and that 'the whole thereof is due and owing to this plaintiff with interest thereon; that said state b'ank is, and has been' for years past, insolvent, and without assets; and that no part of said judgment is collectible from said bank • on execution or otherwise, and the plaintiff demands judgment'for'the sum' of $2,000 and its costs. The defendant' Halley'interposed a demurrer to said complaint, on the grounds (l);that there is a defect of parties plaintiff; (2) that there is a defect' of parties defendant; (3) that the complaint does-not state facts sufficient
It is contended by the respondent in support of the ruling, of the court below (1) that a suit at law by a single creditor against one or more shareholders of an insolvent corporation cannot be maintained in this state, and that the only remedy in such a case is a bill in equity, in which all the creditors, or one. in behalf of all, should be made plaintiff, and all persons owning stock in the bank should be made defendants; (2) that the; complaint does not state facts sufficient to constitute a cause of. action, in that it does not appear from the complaint what was the amount of the outstanding indebtedness of the.bank and' the names of the stockholders, and the amount due from each, and that these allegations are essential in a complaint to constitute a cause of action; (3) that the plaintiff can only recover, upon the original cause of action, and not upon the judgment; The appellant, on the other hand, contends that neither the other creditors nor the other stockholders were necessary parties to the action; that it was not necessary in the complaint to set forth the amount of the indebtedness of the bank to parties: other than the plaintiff, or the amount of stock held by other stockholders; and that the indebtedness by judgment comes, within the provisions, of the law authorizing the recovery of money from stockholders of a state bank. As it'does not affirmatively appear from the complaint that there are other, creditors of the insolvent corporation or other solvent stockholders who have not paid the amount due from them as such stockholders, the contention that there is a defect of parties plaintiff and parties defendant is not presented by the demurrer, and the question of the defect of parties cannot, therefore;
The contention of the respondent that the action should be by a suit in equity, in which the amount of indebtedness must be set forth, and the names and amount of stock held by the respective stockholders, is not tenable, as no provision is made in the Code for such an action, and this court cannot, without trenching upon the powers of the Legislature require the institution of such an action. Undoubtedly, it would be competent for the lawmaking power to prescribe a method of procedure by which an insolvent state bank could be placed in the hands of a receiver with authority in the bank examiner to levy the requisite assessments in order to pay off the indebtedness of the banking association, and to authorize the bank examiner or receiver to enforce the collection of such assessments by a suit in equity, in which the right of creditors and stockholders might be carefully guarded. But in the absence
The contention of the respondent that the plaintiff should have brought its action upon its original cause of action, and not upon the judgment, is also untenable. The judgment is prima facie evidence, at least, as against a stockholder of the amount due-from.the banking association, as a judgment comes
Our conclusion is, therefore, that the circuit court erred in sustaining the defendant’s demurrer to the plaintiff’s complaint, and the order sustaining the same is reversed, and the circuit court is directed to permit the defendants to file an answer upon such terms as may be just.