Wilson v. First National Bank, 1 Wyo. 108

Wilson v. First National Bank

1 Wyo. 108 | Wyo. | 1873

Dissenting Opinion

Fisher, C. J.,

dissenting: The opinion filed by the majority of this court, although styled per curiam, is so remarkable in its character that I cannot permit it to pass into the future without entering my solemn protest. I cannot permit its paternity to rest at my door, and therefore, without taking time to enlarge upon what I conceive to be its errors, simply give a very feAv reasons for dissenting. There are several reasons why the action of the district court, in sustaining the demurrer to plaintiff’s petition, should have been affirmed:

*1111. The petition does not set out the fact, if it be a fact, that the plaintiff was a stockholder at the time he brought his suit. If he was not, he had no cause of action, or, rather, he had not the legal capacity to sue. In the argument upon the demurrer, it was admitted that the stock referred to had been set aside to him, and became his property in accordance with the terms upon which he had paid over the money, that he had shortly afterwards sold 'the shares of stock thus purchased, and in so doing he transferred all the right thereto to the person to whom the stock was transferred.

2. The national banking law provides specific remedies for persons who have sustained losses by any national bank, hence he must seek his remedy in the manner thus provided.

3. If the plaintiff had sustained any loss by the misappropriation of his funds his remedy would lie against the directors, through whom the loss occurred, in their private capacity, and not against the bank, or even against the directors in their official position: See Muse on Banking, 450-452.

If this last position is correct, and I do not see how it can be successfully controverted, then the plaintiff had brought his action wrongfully, and the demurrer should have been and was properly sustained. One of the judges who rendered the opinion of the majority of the court admitted, during the argument, and announced his opinion accompanying the decision, that from his knowledge of the facts the plaintiff could not recover, not having the right of action, nevertheless he united with the other judge in reversing the action of the district court. To me this does not look consistent.

I content myself with entering upon the record this dissenting opinion, trusting to the future either to be sustained or not, as the case may be.

Lead Opinion

By the Court.

There are but two questions to be considered in this case, and, as with all questions of demurrer, facts outside of the pleading cannot be regarded. We are of the opinion, in the first instance, that the fact of the plaintiff having subscribed to the capital stock of the First National Bank, defendant, did not debar him from bringing an action against the same for breach of contract, and that a stockholder certainly has the rights of action against a corporation that are possessed by a corporation against any of its stockholders; 2. We believe that the allegations contained in the plaintiff’s petition are sufficient, if proved, to entitle said plaintiff to recover thereon.

The judgment of the court below is therefore reversed, with costs against the defendant, and twenty days are given defendant, from the filingof this opinion, to answer in the district court.