Clause v. Columbia Savings and Loan Association

• Decision Date: 21 April 1908
• Citation: 95 P. 54,16 Wyo. 450
• Parties: CLAUSE, ADMINISTRATOR, ETC. v. COLUMBIA SAVINGS AND LOAN ASSOCIATION
• Court: Wyoming Supreme Court

95 P. 54

16 Wyo. 450

CLAUSE, ADMINISTRATOR, ETC. v. COLUMBIA SAVINGS AND LOAN ASSOCIATION

Supreme Court of Wyoming

April 21, 1908

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG Judge.

The facts are stated in the opinion.

Judgment reversed and cause remanded.

McMicken & Blydenburgh, for plaintiff in error.

It was necessary for the plaintiff to prove the stock had not matured to maintain its suit. The failure to pay an installment, if any was due, in view of the by-laws of the association, gave a right of action upon the whole debt, and therefore, upon the first default the statute of limitations commenced to run. (Bank v. Peck, 8 Kan. 663; Hemp v. Garland, 4 Q. B. 519; Reeves v Butcher, 2 id. 509; Mach. Works v. Reigon, 64 Tex. 89; Noell v. Gaines, 68 Mo. 649; Mfg. Co. v. Howard, 28 F. 741; Darrow v. Scullin, 19 Kan. 59; Meyer v. Grauber, id. 165; Lewis v. Lewis, 58 id. 564; Douthitt v. Farrell, 60 id. 195; Kennedy v. Gobson, 68 id. 612.) The statute runs against building associations as in case of other corporations. (Thomp. B. Associations, (2d Ed.) 202.) The first summons and service that was quashed was void because improperly directed to and served by the coroner, and no action was therefore commenced by it, so that the statute authorizing a new action in one year did not become applicable. The action was barred under both the general statute and the section relating to suits against an administrator. When a summons is void and not voidable. (Bowen v. Jones, 13 Ired. L.; Anthony v. Beede, 17 Ark. 447; Rudd v. Thompson, 22 Ark. 363; Vaugh v. Burn, 9 Ark. 20; Bertonlin v. Bourgoin, 19 La. An. 360; Bigboo v. Ashley, 7 Ill. 151; Hickey v. Fonistal, 49 Ill. 255; Arnold v. Winn, 26 Miss. 338; Nabors v. Thorson, 1 Ala. 590; Cullanry v. Hanold, 61 Ga. 111; Smith et al. v. Anrick et al., 6 Colo. 338; Sidwell v. Schumaker, 99 Ill. 426; Hocklander v. Hocklander, 73 Ill. 618; Tyman v. Hilton, 44 Cal. 630; Ward v. Ward, 59 Cal. 139; Johnson v. Turnell, (Wis.) 89 N.W. 515; Flint v. Noyes, 27 Kan. 331; Coke Litt. 168 a.; Graves v. Smart, 75 Me. 295; Galvey v. Jones, 80 Ga. 136; Gowley v. Sanders, 88 Ky. 346; Williams v. Hutchinson, 26 Fla. 513; Jonasen v. Walthers, 26 Fla. 448; Andrews v. Fitzpatrick, 16 S.E. 278; Biard v. Smith, 9 Ia. 50; Carlisle v. Weston, 21 Pick.; Granties v. Rosecrance, 27 Wis. 488; R. Co. v. Sayre, 13 N.W. 404; Gallegee v. Pino, 1 N.H. 410; Wood v. Crosby, 2 Hi. 520; Avery v. Warren, 12 Heisk. (Tenn.) 569.)

A suit instituted and voluntarily abandoned is not available in a subsequent action to save it from the statute. (Neil v. Canal Co., 4 Ind. 431; Ivans v. Schooley, 18 N. J. L. 269; Reilly v. Reilly, 64 Hun 496; Seigfried v. R. R. Co., 50 O. St. 294.) Unless there has been service within 60 days, no matter how the failure to obtain legal service occurred, even if it was by the action of the defendant in purposely avoiding service, the statute will bar the action if not in time. (Maghee v. Gainsville, 78 Ga. 790; Amy v. Watertown, (U. S.) 32 L.Ed. 953; Knowlton v. Watertown, 130 U.S. 327; Burgett v. Strickland, 32 Hun 264.) Where the service is defective, the statutes are not suspended. (Furkeks v. Case, 75 Ia. 152; 39 N.W. 238; Peck v. Ins. Co., 102 Mich. 52; Woodville v. Harrison, 3 Wis. 360; Johnson v. Turnell, 113 Wis. 468.)

The action here was not commenced. (Davis v. Ballard, 38 Neb. 830; Trust Co. v. Atherton, 67 Neb. 305; Burlington v. Cooper, 53 N.W. 1025; Hotchkiss v. Aukerman, 65 Neb. 177; Searle v. Adams, 89 Am. Dec. 298; Smith v. Day, (Ore.) 64 P. 812; Bacigalapo v. Court, 40 P. 1055.) The quashing of service left the case in the same condition as though no summons had ever issued, except that it might perhaps have been claimed to authorize a service within sixty days as an attempted commencement of the action. (Supply Co. v. Freeze, 74 S.W. 303; Hayton v. Beason, 31 Wash. 317; Bertrand v. Knox, 39 La. An. 431; Detroit, &c. Co. v. Bagg, 44 N.W. 149; Blair v. Cary, 9 Wis. 543; Wolfenden v. Barry, 65 Ia. 653; Neick v. Leigh, 59 Hun 616; Fulbright v. Tritt, 19 N.C. 491; Hanna v. Ingram, 53 N.C. 55; Wilton v. Detroit, 100 N.W. 1020.)

The summons of Dec. 7, 1901, was so materially different as to its endorsement, that although styled an "alias" it could not relate back to the time of the original to stop the running of the statute. (Elman v. R. R. Co., (Neb.) 105 N.W. 987; R. R. Co. v. Nichols, 8 Colo. 188; Smith v. Aurnich, 6 id. 388; Watson v. Cartner, 1 Neb. 131.) That summons was the actual commencement of the action, and at the date thereof the statutes had run.

Jabez Norman, for defendant in error.

Upon the facts five years had not elapsed from the date of the first default, which was on the last payment due the last Saturday in July, 1896. If that was not the case, the statute would not apply to this note, as there was no definite time for its maturity; the payments thereon were to continue until the stock had matured; and to mature this stock sufficient payments and profits must be made to make each share worth one hundred dollars, and the payments and profits did not amount to that sum.

The option provision of the trust deed takes the case out of the statute, for the entire debt was to become due only at the declared option of the holder. (Lowenstein v. Phelan, 17 Neb. 429; Leavitt v. Reynolds, 79 Ia. 348; Watts v. Creighton, 85 Ia. 154; Mfg. Co. v. Howard, 28 F. 741; Bank v. Neb. &c. Co, 17 F. 763; Belloc v. Davis, 38 Cal. 242.) The suit was commenced with the filing of the original petition and issuance of the summons. (Ry. Co. v. Shelton, 57 Ark. 459; Cox v. Strickland, 120 Ga. 109; Titus v. Poole, 40 N.E. 228 (N. Y.) The section authorizing a new action in one year after a failure otherwise than on the merits became applicable upon the quashing of service. (Conolly v. Hyams, 68 N.E. 662; Meiss v. McCoy, 17 O. St. 225; Ry. Co. v. Bemis, 64 O. St. 26.) The contract of the shareholder was not limited to 72 monthly payments. (Asso'n. v. Lyttle, 16 Colo.App. 423; Asso'n. v. Jungquist, 111 F. 645; Kinney v. Asso'n., 113 F. 364.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The defendant in error, who was the plaintiff below, is a Colorado corporation and belongs to that class of private corporations commonly known as building associations. Its original corporate name was The Columbia Building and Loan Association. In 1899 the name was changed to The Columbia Savings and Loan Association. This suit was brought by the association to recover an amount alleged to be due upon the note or contract of a borrowing shareholder.

Robert O'Malia, then a resident of the City of Rawlins, in this State, became a member of said association June 4, 1890, and received a certificate of that date entitling him to ten shares of the capital stock, subject to the conditions, rules, regulations and by-laws of the association. The by-laws required of each shareholder a monthly payment on the last Saturday of each month of seventy cents on each share, where no loan had been obtained on the stock, but in the event of such loan the payments were regulated by another provision presently to be referred to. It was also stated in the by-laws that each shareholder should be entitled to receive for each share named in his certificate one hundred dollars when the monthly payments and the profits apportioned thereto should equal that sum. Also that a shareholder was entitled to a loan from the association of an amount equal to the value of his shares at maturity, upon making a proper application therefor, and giving the required security. While holding said ten shares, and having regularly made the monthly payments thereon, O'Malia applied for, and, on May 26, 1893, received, a loan of one thousand dollars, which sum equaled the amount to which he would be entitled, in the absence of a loan, upon the maturity of his shares. With his wife he executed a note or contract for the repayment of the loan and a trust deed covering real estate in Carbon County, this state, to secure it, and as collateral security he assigned to the association his shares of stock. Omitting the signatures the note or contract reads as follows:

"No. 500. $ 1,000.

"Rawlins, Wyoming, May 26, 1893.

"In consideration of One Thousand ($ 1,000) Dollars loaned to me by the Columbia Building and Loan Association, we or either of us hereby promise to pay said Association at its office in Denver, Colorado, Sixteen and 25-100 Dollars per month, payable on the last Saturday of each and every month until the stock borrowed upon shall have matured in accordance with the by-laws and rules of said association and this loan is thereby repaid. The shares of stock in the Columbia Building and Loan Association held by the maker of this note as shown by Certificate of Stock No. 1753 are hereby transferred and pledged to the said association as collateral security for the performance of the conditions of this obligation and of the trust deed securing same."

The trust deed provided that in case of default in any of the payments of principal or interest, according to the tenor and effect of "said promissory note" the whole of said principal sum secured and the interest thereon to the time of sale, may at once, "at the option of the legal holder thereof, become due and payable," and the premises sold as if the indebtedness had matured. Payments by borrowing shareholders were to be governed by the following provision of the by-laws:

"Shareholders having obtained loans shall, on or before the last Saturday of each and every month until the stock borrowed upon shall have matured and the loan is thereby repaid make or cause to be made payments as follows: One seventy-second of the sum...