Brownell v. Anderson

• Citation: 222 N.W. 55,117 Neb. 652
• Decision Date: 23 November 1928
• Docket Number: 26270
• Parties: R. O. BROWNELL, RECEIVER OF THE FIRST BANK OF NICKERSON, APPELLANT, v. W. A. ANDERSON ET AL., APPELLEES
• Court: Supreme Court of Nebraska

222 N.W. 55

117 Neb. 652

R. O. BROWNELL, RECEIVER OF THE FIRST BANK OF NICKERSON, APPELLANT, v. W. A. ANDERSON ET AL., APPELLEES

No. 26270

Supreme Court of Nebraska

November 23, 1928

APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Reversed, with directions.

REVERSED.

Dolezal Spear & Mapes, C. M. Skiles and Ira D. Beynon, for appellant.

Courtright Sidner, Lee & Gunderson, contra.

Heard before GOSS, C. J., DEAN, THOMPSON, EBERLY and HOWELL, JJ., and CHASE and REDICK, District Judges.

OPINION

THOMPSON, J.

This action was instituted by appellant, the receiver of the First Bank of Nickerson, against the appellees by way of a petition in equity, in due and usual form in such cases, to enforce the double liability of appellees as stockholders of the above insolvent bank under sections 4 and 7, art. XII of the Constitution of this state. At the trial the appellee, Seymour S. Sidner, as executor of the estate of John Sidner, deceased, filed a special appearance which challenged the jurisdiction of the district court over him, as well as over the subject-matter. The court sustained the challenge and dismissed the action, to reverse which the receiver appeals and presents as reasons for such reversal, in substance, that, under the facts shown by the record and the law applicable thereto, the special appearance should have been overruled and appellant permitted to proceed with his action to final judgment.

The facts material for our consideration, as shown by the record, are: The First Bank of Nickerson is one organized under the laws of this state for commercial banking business at Nickerson, in Dodge county. The appellees, defendants, with others were and are stockholders in the bank, one of whom, as above indicated, was John Sidner, who died testate a resident of Dodge county on August 15, 1923. On September 10, 1923, in the county court of such county, the will was admitted to probate, and Seymour S. Sidner, appointed executor, who qualified and entered upon the discharge of his duties, and has been ever since so acting. On July 10, 1924, the bank was, by the district court for Dodge county, adjudged insolvent and Emil Folda appointed receiver, who subsequently resigned and R. O. Brownell, the appellant, was appointed his successor. On August 29, 1924, the receiver filed in the county court, in the matter of the estate of John Sidner, a contingent claim, in substance, as follows: That he, as receiver of the above named bank, was then engaged in ascertaining and assembling the assets and liabilities thereof; that such John Sidner at the time of his death was the owner of 20 shares of the capital stock of the bank of the par value of $ 100 a share; that on January 11, 1924, the county court, in the course of administering the Sidner estate, entered an order barring claims, which, however, was about six months prior to the appointment of Folda as receiver; that on August 22, 1924, the executor of such estate filed his first report and petition for discharge, which was set for hearing September 15, 1924, all as shown by the record of such county court; that on information and belief claimant states there will be a liability by reason of such stock subscription and ownership against the Sidner estate which is not now ascertainable, but which may reach the sum of $ 2,000 when fully accrued; and then prayed "that final discharge of said executor be deferred until the receiver's claim is ascertained, or that he be directed by the court to retain from distribution sufficient of the assets of said estate to pay this claim when ascertained and proved, and for such other and further relief as may be appropriate in the premises." This record further shows that every condition precedent necessary to the bringing of this action has been had, and, as hereinbefore indicated, such conditions in usual form are set forth in appellant's petition.

On the record as hereinbefore disclosed, appellee contends that on the probate of the will, the qualification of the executor and the filing of the contingent claim by the receiver, the county court became vested with exclusive jurisdiction of the matters involved herein. Then, as to appellant's challenges to the judgment of the trial court, appellee asserts: "(1) This is an action for a money judgment only, so far as this appellee is concerned. (2) The district court has no jurisdiction over the executor in this action." In our opinion, these contentions of appellee were approved and followed by the trial court. Appellee relies on section 1374, Comp. St. 1922, and our holdings in Burke v. Scheer, 89 Neb. 80, 130 N.W. 962; Dickinson v. Kline, 96 Neb. 435, 148 N.W. 141; Drainage District v. O'Neill, 109 Neb. 552, 191 N.W. 685; and Hill v. May, 115...