Brownell v. Anderson, No. 26270.

CourtSupreme Court of Nebraska
Writing for the CourtTHOMPSON
Citation222 N.W. 55,117 Neb. 652
PartiesBROWNELL v. ANDERSON ET AL.
Decision Date23 November 1928
Docket NumberNo. 26270.

117 Neb. 652
222 N.W. 55

BROWNELL
v.
ANDERSON ET AL.

No. 26270.

Supreme Court of Nebraska.

Nov. 23, 1928.



Syllabus by the Court.

“The remedy for the enforcement of the entire double liability imposed by the Constitution upon stockholders of a state bank in the event of insolvency is a suit in equity by a creditor for the benefit of all the creditors, or by the receiver, against all the stockholders.” Rogers v. Selleck, 116 Neb. page ___, 221 N. W. 702.

A receiver of an insolvent state bank, duly appointed by the district court, lodged with the county court a contingent claim for double stock liability against the estate of a deceased stockholder, then being administered by it. Held, (a) that the filing of such claim did not vest the county court with exclusive jurisdiction over it, and neither did such filing deprive the receiver of the right to proceed in the district court appointing him, in a suit in equity, to determine the liability of such stockholder; (b) that the executor of such estate was a proper party defendant; (c) that it was the duty of the county court to direct the executor to retain in his hands sufficient of the assets to pay such contingent claim when the same became absolute.


Appeal from District Court, Dodge County; Button, Judge.

Action by R. O. Brownell, receiver of the First Bank of Nickerson, against W. A. Anderson and others, wherein Seymour S. Sidner, as executor of the estate of John Sidner, deceased, filed a special appearance. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

[222 N.W. 55]

Dolezal, Spear & Mapes, of Fremont, and C. M. Skiles and Ira D. Beynon, both of Lincoln, for appellant.

Courtright, Sidner, Lee & Gunderson, of Fremont, for appellees.


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

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. 12, 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...

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11 practice notes
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...56 Neb. 201, 76 N. W. 587;Hastings v. Barnd, 55 Neb. 93, 75 N. W. 49;Brown v. Brink, 57 Neb. 606, 78 N. W. 280;Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55. [2] Jurisdiction of equity to enforce constitutional liability of stockholders of an insolvent banking corporation is based upon t......
  • Parker v. Luehrmann, No. 28731.
    • United States
    • Supreme Court of Nebraska
    • January 26, 1934
    ...claim absolute for allowance in the county court. The administrator is a proper party defendant for that purpose. Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55. 3. “The trust of an administrator or executor is a continuing one, and a decree of final accounting does not destroy the relati......
  • Walter v. Walter, No. 26107.
    • United States
    • Supreme Court of Nebraska
    • November 28, 1928
    ...the interest of plaintiffs in the east 80 would have been reduced to one-third, and their interest in Knox county estate would have been [222 N.W. 55]one-third, after the payment of $3,000 of legacies and a $3,000 mortgage. No prejudice is shown. It is said in 30 Cyc. 190, that, until a “pr......
  • Hoover v. Haller, No. 31980.
    • United States
    • Supreme Court of Nebraska
    • January 18, 1946
    ...Neb. 613, 97 N.W. 808. Certainly an action in partition is one for relief other than for the recovery of money only. Brownell v. Anderson, 117 Neb. 652, 222 N.W. 55, was a suit involving the liability of a stockholder in a state bank, brought against the executor of the estate of a deceased......
  • Request a trial to view additional results
11 cases
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...56 Neb. 201, 76 N. W. 587;Hastings v. Barnd, 55 Neb. 93, 75 N. W. 49;Brown v. Brink, 57 Neb. 606, 78 N. W. 280;Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55. [2] Jurisdiction of equity to enforce constitutional liability of stockholders of an insolvent banking corporation is based upon t......
  • Parker v. Luehrmann, No. 28731.
    • United States
    • Supreme Court of Nebraska
    • January 26, 1934
    ...claim absolute for allowance in the county court. The administrator is a proper party defendant for that purpose. Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55. 3. “The trust of an administrator or executor is a continuing one, and a decree of final accounting does not destroy the relati......
  • Walter v. Walter, No. 26107.
    • United States
    • Supreme Court of Nebraska
    • November 28, 1928
    ...the interest of plaintiffs in the east 80 would have been reduced to one-third, and their interest in Knox county estate would have been [222 N.W. 55]one-third, after the payment of $3,000 of legacies and a $3,000 mortgage. No prejudice is shown. It is said in 30 Cyc. 190, that, until a “pr......
  • Hoover v. Haller, No. 31980.
    • United States
    • Supreme Court of Nebraska
    • January 18, 1946
    ...Neb. 613, 97 N.W. 808. Certainly an action in partition is one for relief other than for the recovery of money only. Brownell v. Anderson, 117 Neb. 652, 222 N.W. 55, was a suit involving the liability of a stockholder in a state bank, brought against the executor of the estate of a deceased......
  • Request a trial to view additional results

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