Allen v. McFerson
| Decision Date | 06 April 1925 |
| Docket Number | 11179. |
| Citation | 77 Colo. 186,235 P. 346 |
| Court | Colorado Supreme Court |
| Parties | ALLEN v. McFERSON, State Bank Com'r. |
Department 1.
Error to District Court, Crowley County; James A. Park, Judge.
Action by Grant McFerson, as State Bank Commissioner, against J. T Allen. Judgment for plaintiff, and defendant brings error and applies for supersedeas.
Supersedeas denied, and judgment affirmed.
H. L Lubers, of Denver, for plaintiff in error.
Chas. M. Rose and Leo P. Kelly, both of Pueblo for defendant in error.
McFerson state bank commissioner of Colorado, defendant in error and plaintiff below, obtained judgment in an action to enforce liability as a stockholder of a state bank against Allen, defendant, who is plaintiff in error. Defendant brings error and asks for a supersedeas.
Reference hereafter to the plaintiff means McFerson; by the word 'defendant,' we mean Allen.
The complaint of the bank commissioner alleges his official capacity; the corporate existence of the Citizens' State Bank of Ordway; that it was engaged in the banking business until about October 8, 1921; its capital stock was $25,000, divided into 250 shares of $100 each, of which the defendant is and was the owner of 10 shares; that on and before August 24, 1921, the capital stock of the bank was impaired and about that time the bank was notified of the impairment by the plaintiff bank commissioner; that about August 29, 1921, the board of directors of the bank made a pro rata assessment of 50 per cent. of the par value upon all of the outstanding capital stock of the bank to make good the deficiency, and about September 1, 1921, notified the stockholders, including the defendant, of the assessment. the complaint further recites that about October 8, 1921, the bank placed its assets and affairs in the possession of the bank commissioner for liquidation, and since that time the bank commissioner is and has been in possession of the assets and affairs of the bank for the purpose of liquidation. The failure and refusal of the defendant to pay the assessment upon the stock owned by him is alleged, and that it is due and unpaid to the plaintiff; that the bank is insolvent; that if and when all the liabilities of stockholders growing out of the assessment are paid in full and if and when all liability of stockholders, equally and ratably, for the debts of the bank are paid in full to the amount of double the par value of their stock, and when all other assets of the bank are liquidated and the total assets are distributed to the creditors, there will still be due to the creditors of the bank a sum in excess of $10,000.
The defendant filed an answer denying that at any time in the complaint mentioned he was the owner of 10 shares, or any shares, of the bank. No other allegations being denied, they are therefore admitted, so the only question of fact is the defendant's ownership of the stock, and the only question of law is his liability as a stockholder under the above facts. After the defendant filed his answer, he filed a general demurrer, which was overruled, and on taking evidence, judgment was rendered against him.
As to the defendant's ownership of the stock, he bought and paid for it and a certificate of stock was issued and delivered to him. He testified that he had sold the stock to his brother and signed and turned over the certificate to him. There was some desultory discussion or correspondence about the stock being transferred on the books of the bank to his brother, but this is immaterial, because it never was in fact transferred or presented for transfer, and at all times the defendant remained the record owner on the books of the bank and this he knew. Furthermore, in 1917 and 1920, the defendant gave a proxy to vote his bank stock at certain...
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Austin v. Strong
...of the stock implies assent of the owner to the statutory conditions under which the corporation is organized." In Allen v. McFerson, 77 Colo. 186, 235 P. 346, the Supreme Court of Colorado, in discussing the basis of such liability, "A stockholder of a bank assumes a contractual liability ......
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Federal Deposit Ins. Corp. of Washington, D. C. v. Ensteness
...Ill.App. 142; Chavous v. Gornto, 89 Fla. 12, 102 So. 754; United States et al. v. Freeman et al., D.C., 21 F.Supp. 593; Allen v. McFerson, 77 Colo. 186, 235 P. 346; White, Sup't of Banks of State of New York, v. Adler et al., 255 A.D. 580, 8 N.Y.S.2d 513; Ochiltree v. Iowa Railroad Contract......
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Federal Deposit Ins. Corp., v. Ensteness
...Ill. App. 142; Chavous v. Gornto, 89 Fla. 12, 102 So. 754; United States et al. v. Freeman et al., D. C., 21 FSuPp. 593; Allen v. McFerson, 77 Colo. 186, 235 P. 346; White, Sup’t of Banks of State of New York, v. Adler et al., 255 App. Div. 580, 8 N. Y. S.2d 513; Ochiltree v. Iowa Railroad ......
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Broadbent v. McFerson
...a judgment which would result in their participation with the creditors as claimants against the insolvent bank.' In Allen v. McFerson, 77 Colo. 186, 235 P. 346, the insisted that the bank commissioner had no right to bring the action, but the court said that it was not only his right but h......