Cochrane v. Morris

• Decision Date: 30 December 1931
• Citation: 157 A. 652
• Parties: COCHRANE v. MORRIS.
• Court: New Jersey Supreme Court

157 A. 652

COCHRANE

v. MORRIS.

Supreme Court of New Jersey, Mercer County.

Dec. 30, 1931.

Action by J. P. Cochrane, liquidator of the First Bank of Lake Worth, Florida, against William J. Morris, Jr. On motion to strike out the answer filed by defendant.

Order in accordance with opinion.

Backes & Backes, of Trenton, for plaintiff.

Homan, Buchanan & Smith, of Trenton, for defendant.

OLIPHANT, Circuit Judge, sitting as Supreme Court Com'r.

This matter comes before me on a motion to strike out the answer filed by the defendant.

The plaintiff is the liquidator of the First Bank of Lake Worth, Fla. The defendant is the record holder of twenty-one shares of the capital stock of said bank. This action is brought to recover from the defendant a 100 per cent. assessment laid against him on his alleged liability under section 4128, Rev. Gen. St. 1920, of Florida, which provides as follows: "Stockholders of every banking company shall be individually responsible equally and rateably and not for one another for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares."

The defendant by way of a fifth separate defense says that the complaint does not set forth or disclose any cause of action, in that said action is contrary to the provisions of section 2 of the Supplement of 1897 to the Corporation Act (2 Comp. St. 1910, p. 1056, par. 94b), and reserves his right to set up this defense as grounds for the dismissal of the complaint. The statute referred to reads as follows: "No action or proceeding shall be maintained in any court of law of this state against, any stockholder, officer or director of any domestic or foreign corporation by or on behalf of any creditor of such corporation to enforce any statutory personal liability of such stockholder, officer or director for or upon any debt, default or obligation of such corporation, whether such statutory personal liability be deemed penal or contractual, if such statutory personal liability be created by or arise from the statutes or laws of any other state or foreign country, and no pending or future action or proceeding to enforce any such statutory personal liability shall be maintained in any court of this state other than in a nature of an equitable accounting for the proportionate benefit of all parties interested, to which such corporation and its legal representatives, if any, and all of its creditors and all of its stockholders shall be necessary parties."

The liability of the defendant which is sought to be imposed is a...