This cause was considered by this court on a former appeal. (Weil v. Defenbach,
Respondent contends that every fact which existed and every proposition of law which should have been submitted upon the former appeal is now settled and will not again be heard by this court. In the cases of Hall v. Blackman,
It is first contended that the judgment in the case of Churchill v. Traders’ State Bank was void, in that the summons and complaint were not served on the Traders’ State Bank at any time or at all. This contention is based upon the fact that Mr. Defenbach, who was named in the sheriff’s return as the person upon whom the summons was served and as president of the Traders’ State Bank, denied upon the witness-stand that he- was served with summons at any time or place. This is a collateral attack upon the judgment. A void judgment is subject to collateral attack, and a judgment entered without jurisdiction of the person is void. It- is generally hеld, however, that where a judgment of a court of 'general jurisdiction contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record. There is a conflict in the authorities as to the evidence which may be received to show want of jurisdiction upon a collateral attack. (See 15 R. C. L., p. 893,
For the contrary view, see Ferguson v. Crawford,
This court has adopted the view expressed in the foregoing quotation from R. C. L. In the case of O’Neill v. Potvin,
It is next contended that even admitting that personal service was made upon Byron S. Defenbach it was not service upon the corporation, for the reason that Defenbach was not at the time a stockholder and therefore could not act as director or president of the corporation. Mr. Defen bach testified that he sold and transferred his stock in the Traders’ State Bank in the year 1908 to one Brewer. He testified that Brewer was to take the stock in the Citizens’ State Bank, but he retained his proportional interest in the assets of that bank remaining after the deal with the Citizens’ State Bank was made. The evidence further showed that thereafter, in 1910, Mr. Defenbach received his proportion of the remaining assets of the Traders’ State Bank, his proportion being determined by the amount of stock he still held in that institution. Under this state of the evidence, no conclusion can be reached except that Mr. Defenbach remained a stockholder of the Traders’ State Bank, and transferred to Brewer only his right to receive thе shares of the stock in the Citizens’ State Bank which were issued at the time that bank took over a portion of the assets of the Traders’ State Bank. The last election of directors and officers of the Traders’ State Bank occurred in March, 1908. At that time Mr. Defenbach was elected president. He never resigned or was removed and the Traders’ State Bank was never dissolved by legal proceedings. Neither was it shown that it had forfeited its charter. He therefore remained the president of the institution for all purposes relating to the business of that corporation. (Lucky Queen Min. Co v. Abraham,
It is next contended that the appointment of the receiver who instituted this action was void. This also was a collateral attack upon the order of the court appointing a receiver, and can only be successfully urged by showing that the appointment was absolutely void. The contention is based upon the banking laws of this state then in force,
Appellants specify as error the finding of the court that the action was not barred by the statute of limitations. The sections of the statute relied upon were those now numbered C. S., secs. 6610, 6611, subd. 1, and 6630. In our opinion section 6630 is controlling. It reads as follows: “This chapter does not affect actions against directors оr stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the- discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.”
The court found that Churchill “after the commencement of said action discovered for the first time that the defendants had divided all the assets of the Traders’ State';Bank among themselves and converted all the property of said bank to their own use.” The liability of the stockholders to return to the corporation for the benefit of its creditors
This action was instituted by the receiver. The order appointing the receiver limited his authority to collection “from the оfficers, directors and stockholders of said defendant corporation all the assets and moneys wrongfully received by them from said corporation .... sufficient to pay the judgment herein described and all costs in this action and all actions necessary tо be instituted by said receiver, and that said receiver is given full power and authority to act in all matters necessary for the purpose of carrying into effect the judgment heretofore rendered in this action and of causing said judgment and costs of receivеrship to be fully paid and satisfied.” For most purposes in connection with actions by or against a receiver, he may be said to stand in the shoes of the person or corporation for or of which he is the receiver, and in general this is true with referencе to the application of the statute of limitations. In this case, however, the receiver cannot be said to represent merely the corporation and to be the party aggrieved within the meaning of the statute quoted above. The receivеr’s authority was limited to the collection of sufficient assets to pay the Churchill judgment. He has brought this action for the purpose of recovering such assets for the benefit of the judgment creditor alone. The judgment entered limited the amount of recovery to a sum sufficient to satisfy his judgment, together with the necessary costs and expenses incurred by the receiver. He was not authorized to collect any amount which might afterward be distributed to the stockholders of the corporation. The person aggrieved within the meаning of this statute is the creditor, and since this action was brought for his benefit, the statute did not run until three years after his discovery of the facts upon which the liability was created. Beference may be made to the case of Stokes, v. Williams, 249
At the trial of the cause the defendаnts offered to prove by Mr. Whitaker that Churchill, who recovered judgment against the corporation, did not in fact have a cause of action against the corporation, and upon the facts he was not entitled to judgment. The offer was rejected by the trial court. In this the court did not err. Final judgment against a corporation is conclusive upon a stockholder in an action brought against him to recover the assets of the corporation which have been improperly distributed to him, as to all matters which might have been urged by the corporation as a defense thereto, unless he can show fraud or collusion on the part of the directors of the corporation in permitting this judgment to be entered. (14 C. J. 1061; 7 R. C. L. 420; Coe v. Armour Fertilizer Works,
The judgment is affirmed, with costs to respondent.