Baird v. McMillan, 4922.

• Decision Date: 22 October 1925
• Docket Number: No. 4922.,4922.
• Citation: 205 N.W. 682,53 N.D. 257
• Parties: BAIRD v. McMILLAN.
• Court: North Dakota Supreme Court

53 N.D. 257

205 N.W. 682

BAIRD

v.McMILLAN.

No. 4922.

Supreme Court of North Dakota.

Oct. 22, 1925.

Syllabus by the Court.

Section 8736 of the Compiled Laws for 1913, barring claims against estates of deceased persons, if not presented within the time specified in a notice, is construed in relation to an assessment of superadded liability imposed by section 5168 of the Compiled Laws for 1913 upon holders of bank stock, where the bank did not suspend until after the statutory period had elapsed, and it is held that the claim for superadded liability is not barred though not presented within the time specified in the notice for filing claims against the estate.

Additional Syllabus by Editorial Staff.

Under Laws 1915, c. 53, superadded liability imposed on holder of stock in state bank by Comp. Laws 1913, § 5168, may be enforced by receiver of bank.

Appeal from District Court, Burleigh County; Chas. M. Cooley, Judge.

Action by L. R. Baird, as receiver of the Clyde State Bank of Clyde, against C. B. McMillan, as executor of the last will and testament of James Balfour, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.E. E. Fletcher, of Langdon, for appellant.

Conmy, Young & Burnett, of Fargo, for respondent.

BIRDZELL, J.

[1] This is an appeal from a judgment against the defendant as executor of the last will and testament of James Balfour, deceased. The appeal presents the single question as to whether or not an estate of a deceased person who had been a shareholderin a state bank may be held liable, through the executor, for an assessment on account of a superadded statutory liability where the bank fails after the death of the shareholder and where the claim was not filed or allowed in probate court. The deceased died in March, 1922. The will was filed for probate in Grand Forks county, and at the time the liability was assessed the stock in question had not been distributed and the estate had not been closed. The time for filing claims in the estate pursuant to notice to creditors expired in March, 1923. The Clyde State Bank, in which the deceased held 15 shares of the par value of $1,500, closed January 30, 1924. On February 15, 1924, the district court in charge of the receivership entered an assessment order assessing the full amount of the statutory liability. The claim for this liability was presented to the executor on May 1, 1924.

We do not understand that there is any serious contention that the estate of the deceased shareholder is not liable to assessment under section 5168 of the Compiled Laws for 1913, which provides for the superadded liability, but it is contended that the claim is barred by reason of the provisions of section 8736 of the Compiled Laws for 1913. In so far as material, that section reads as follows:

“If a claim arising upon a contract heretofore made be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be presented within one month after it becomes due or absolute. * * * All claims arising upon contract hereafter made, whether the same be due, not due or contingent, must be presented within the time limited in the notice; and any claim not so presented is barred forever.”

The liability of the shareholder is “for all contracts, debts and engagements of such association made or entered into to the extent of the amount of his stock therein at the par value thereof, in addition to the amount invested in and due on such shares.” Section 5168, C. L. 1913. Is the liability prescribed by this section a claim which is barred if not presented within the time limited by section 8736, supra?

It is first to be observed that the limitations are not absolute; exceptions being made where the claimant had no notice by reason of being out of the state. It is further to be observed that the bar operates against the specific claim, and that the statute seems to presuppose the existence of a legal person capable of presenting the claim, whether or not it be due or whether or not it be contingent. The statute does not seem to contemplate a situation where, owing to the nature of the liability, there is no person in existence capable of presenting the claim.

The liability imposed by section 5168 is secondary rather than primary; that is, the corporation itself is an entity, separate and apart from its members, and the stockholder and the corporation are not made jointly or jointly and severally liable for the debts of the corporation. The debts for which the stockholder is to be held answerable are the debts of the corporation. Obviously, the plaintiff seeking to maintain a separate action against the stockholder would have to allege something more than the mere existence of the corporate debt in order to predicate a liability under the statute. For the purpose of applying the ordinary statute of limitations to the action brought...