Hannah v. Moberly Bank

• Decision Date: 30 April 1878
• Citation: 67 Mo. 678
• Parties: HANNAH, Appellant, v. THE MOBERLY BANK.
• Court: Missouri Supreme Court

67 Mo. 678

HANNAH, Appellant,

v.THE MOBERLY BANK.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

McCanne & Rutherford and H. S. Priest for appellant.

N. A. Martin and Reed & Terrill for respondents.

HOUGH, J.

This was an application by John F. Hannah, a judgment creditor of the Moberly Bank, for execution against one of its stockholders, there being, as he alleged, no property or effects of the bank whereon to levy. The application was denied and plaintiff has appealed.

It is agreed that the facts in this case are as follows: That at the January term, 1875, of the circuit court of Randolph county the Moberly Bank, then a corporation organized under the general laws of the State of Missouri for banking purposes, was largely indebted to various persons for money on deposit, among whom was plaintiff herein; and at said January term, 1875, of said court said Moberly Bank came into court, by its attorney, and confessed judgment separately in favor of all its creditors, among whom was plaintiff, and all of said judgments were entered up and severally consented to by said creditors and plaintiff; and it was then the agreement and understanding that W. H. Williams, who was then acting sheriff of Randolph county, should take charge of all the property, effects and assets of every kind belonging to the said bank, under executions issued separately on said confessed judgments, and realize on said property and effects, and apply the same ratably on all such judgments and executions; to all of which plaintiff was a party, and to all of which he consented; and that said W. H. Williams, as sheriff as aforesaid, under the executions issued on the judgments aforesaid, did proceed to and did take possession of and seize and levy upon all the goods, chattels, effects, property and credits of the Moberly Bank, including all the stock of said Moberly Bank. Whereupon the court, of its own motion, appointed said Williams receiver of said Moberly Bank, and, as such receiver and sheriff aforesaid, said Williams did proceed to realize on all said property and effects, and did realize on the same, and did dispose of all property and effects of said Moberly Bank, including all choses in action, bonds, bills, notes, accounts, except the stock subscription books or unpaid stock owned by stockholders, as shown by the stock books then in his hands under said levies, and paid out the proceeds ratably on all said judgments and executions, to all of which plaintiff was a party and consented, and received his pro rata; after which there remained due and unpaid on said judgments and executions, and are still unpaid and owing, large sums; and made report of all his said proceedings, on the 15th day of February, 1877, to said court, stating therein that he had exhausted the assets of said defendant, Moberly Bank, and asking to be discharged; which report was overruled, and the following order made and entered of record, which said order is in words and figures as follows, to-wit:

George W. Keebaugh et al., plaintiff, v. Moberly Bank, defendant.

On motion for execution against stockholders.

Now, at this 15th day of February, 1877, come the parties, by their attorneys, and the motion heretofore filed by defendant, requiring W. H. Williams, sheriff of Randolph county, to amend the report heretofore filed by him as to collecting against Moberly Bank, is considered by the court and by said court sustained, and thereupon said report is amended so as to show that the stock books of said bank, containing subscription of unpaid stock, were levied on by him, under certain executions in favor of plaintiff, on the ____ day of ______, 1876, and that said stock books are now in his possession; and the said sheriff, by leave of court first had and obtained, having amended his returns on said executions in conformity to the facts, it is, therefore, ordered that W. H. Williams be and is hereby appointed receiver of said Moberly Bank, with full power to collect its assets, including all unpaid stock, and he is hereby ordered to proceed at once to collect the same and hold the proceeds subject to the further orders of this court, and all motions for executions in favor of plaintiff against the stockholders of said Moberly Bank are continued until the next term of this court; to all of which plaintiff was a party. Then and there plaintiff's counsel objected to the form of the order, but took no appeal therefrom.

Plaintiff, on the 5th day of February, 1877, filed his proper motion in said Randolph circuit court, in term time, setting forth fully that defendant was a corporation; that a judgment as aforesaid had been recovered by plaintiff, and execution issued thereon, and that defendant was insolvent, and that said execution had been returned, and that no property could be found whereon to levy further executions, and that the sum of fifteen hundred and sixty-one and twenty-six-hundredths dollars ($1,561.26) and interest thereon was yet due plaintiff on his said judgment, and praying the court for an order for an execution in favor of plaintiff and against W. R. Samuel, a stockholder of defendant, for the amount of the unpaid stock, amounting to the sum of $400; said motion setting forth all matters and facts necessary to set forth in making such an application; that a copy of said motion, with a notice to said W. R. Samuel, was duly served upon him on the 20th day of January, 1877, said notice stating particularly the time and place of filing and submitting said motion in said Randolph circuit court, and all things necessary to be stated in said notice, and return of service thereof duly made by the sheriff of Randolph county; that said motion for execution was not determined at said February term, 1877, of court, but was continued generally to the next term of the court, to-wit: September term, 1877; that at the September term--to-wit: on the 10th day of September, 1877--in term time, said W. H. Williams, sheriff aforesaid, as and in his capacity of receiver of the Moberly Bank, defendant, filed his suit against the said W. R. Samuel, stockholder, for the amount of his unpaid stock, to-wit: the sum of $400; that said W. R. Samuel, on the same day--to-wit: the 10th day of September, 1877--voluntarily appeared and filed his answer in said cause, and asked for a trial of the same; that his answer confessed that he owed Moberly Bank, defendant, $400, balance due on unpaid...