Bourne v. Baer, No. 21634.

• Court: Supreme Court of Nebraska
• Writing for the Court: WELCH
• Citation: 107 Neb. 255,185 N.W. 408
• Decision Date: 26 November 1921
• Docket Number: No. 21634.
• Parties: BOURNE v. BAER ET AL.

107 Neb. 255
185 N.W. 408

BOURNE
v.
BAER ET AL.

No. 21634.

Supreme Court of Nebraska.

Nov. 26, 1921.

Syllabus by the Court.

A liability which is created by statute to follow as a consequence of the doing or omission of some act required by law, the extent of which liability is not measured or limited by the damage caused by the act or omission, is in the nature of a penalty, the statute penal in its character, and the liability imposed by the statute is a penalty. Kleckner v. Turk, 45 Neb. 176, 63 N. W. 469.

An action to enforce a liability imposed by statute, which is a penalty, must be brought within one year, as provided by section 7570, Rev. St. 1913.

A liability imposed by statute, which is incurred as a necessary consequence of becoming a stockholder in a corporation, partakes of the nature of a contract to which the stockholder assents, and such liability is contractual in its nature, and not a penalty.

An action to enforce a liability created by statute, which is not penal, may be brought within four years from the time the cause of action accrues. Rev. St. 1913, § 7568.

Appeal from District Court, Gage County; Pemberton, Judge.

Action by Wilber S. Bourne, as receiver of the Cortland Creamery Company against Hiram F. Baer and others. Judgment for defendants dismissing the action, and plaintiff appeals. Affirmed in part and reversed in part.

[185 N.W. 408]

Hazlett, Jack & Laughlin, of Beatrice, for appellant.

Kretsinger & Kretsinger and Sackett & Brewster, all of Beatrice, for appellees.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., and WELCH and GRAVES, District Judges.

WELCH, District Judge.

Appellant, in September, 1919, commenced this action against all of the owners of stock in the Cortland Creamery Company, a corporation organized under the laws of the state of Nebraska, to recover from said stockholders their liability as such stockholders imposed by section 577, Rev. St. 1913, for failure of the corporation to publish notice annually of all its indebtedness.

The petition alleged that said corporation was organized in January, 1912, and from that date to March 4, 1915, transacted business as a corporation; that on the latter date it became insolvent and ceased doing business; that on March 18, 1916, said corporation was, by order of court, dissolved, the plaintiff herein appointed receiver to take charge of the assets of said corporation,

[185 N.W. 409]

sell the same, and distribute the funds of the corporation under the order of the court; that thereupon plaintiff qualified as such receiver and ever since has been so acting.

The petition also sets forth the names of all persons who ever owned stock in said corporation, with the respective amount of stock owned by each, and makes all stockholders then living, and the legal representatives of such as were deceased, defendants.

The petition also alleged that there were unpaid subscriptions for stock of the corporation by the defendant, C. F. Luthey, in the sum of $100; by the defendant, Rudolph A. Boesinger, $100; and by the defendant, Sylvester Bonebright, $50.

The petition also alleges facts showing that on January 31, 1917, the court allowed all claims against said corporation, and entered judgment decreeing the several sums due from it to its several creditors, amounting in the aggregate to the sum of $4,397.25, which amount was all the obligations of the corporation, and that by September 17, 1917, all of the assets of said corporation had been sold under orders of the court; that the debts against said corporation, so allowed and decreed by the court, exhausted all of the proceeds of the sale of the assets of said corporation, and would leave a large amount of said indebtedness, to wit, more than $3,500, unpaid.

The petition further alleged that said corporation never at any time during its existence gave notice by publication of its existing indebtedness, and alleged all other facts necessary to state a cause of action based upon said section 577, Rev. St. 1913; provided, however, the facts above set forth, as alleged therein, do not show that the action is barred by the statute of limitations.

The defendant, Klaas Slote, answered, alleging, among other things, that plaintiff's cause of action did not accrue within one year next before filing said petition, and that said petition did not state facts sufficient to constitute a...