Davis v. Drury
| Decision Date | 07 June 1919 |
| Docket Number | 22,060,22,059 |
| Parties | JOHN M. DAVIS, as Bank Commissioner of the State of Arkansas, Appellant, v. M. J. DRURY, Appellee. JOHN M. DAVIS, as Bank Commissioner of the State of Arkansas, Appellant, v. J. M. MEADE, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1919.
Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INSOLVENT BANK--Liability of Stockholders--Limitation of Actions. Where a statute imposes an additional liability upon a stockholder on account of the insolvency of a corporation, in an amount equivalent to that which the stockholder has invested in the corporate stock, such liability is mature, and a cause of action accrues thereon when the fact of insolvency and the extent of the liability are determined; and the operation of the statute of limitations is not postponed by the unauthorized act of a public official who gives the stockholders a leniency of thirty days in which to pay their several statutory liabilities.
2. SAME. An action on a liability imposed by statute is barred in three years after such statutory liability has accrued.
Stephen H. Allen, Otis S. Allen, and George S. Allen, all of Topeka, for the appellant.
Clad Hamilton, Clay Hamilton, and J. B. Larimer, all of Topeka, for the appellees.
In these two cases, the bank commissioner of Arkansas seeks to recover from the defendants on their individual liability as stockholders of an insolvent bank. In 1912, the defendants acquired certain shares of stock in the Bank of Huntington, Ark. In 1913, the legislature of Arkansas enacted a statute (Kirby and Castle's Digest of the Statutes of Arkansas, ch. 13, 1916 ed.), imposing a double liability on stockholders of state banks. In May, 1914, the bank commissioner took charge of the Bank of Huntington because of its actual or impending insolvency. Thereafter the bank commissioner, upon full examination of its financial status, determined that the bank was insolvent, and on August 18, 1914, that officer made an assessment equivalent to 100 per cent--the full double liability--of the outstanding stock, and notified the defendants to pay the same on September 18, 1914.
These defendants failed or declined to pay, and this action was filed against them on September 5, 1917. In defense, the statute of limitations and certain constitutional objections were successfully interposed in bar of plaintiff's recovery in the trial court, and he appeals.
First, as to the statute of limitations: The Arkansas statute provides that the stockholders of a bank shall be held individually responsible, equally and ratably, for all the contracts, debts, and engagements of the bank, "to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock" (Kirby and Castle's Digest of the Statutes of Arkansas, ch. 13, § 537). The statute defines insolvency (§ 552), and provides that when the commissioner has ascertained the fact that the bank is insolvent, he shall require the stockholders to pay a sufficient sum to restore its solvency (§ 553), and when he takes possession of such a bank--
(§ 554.)
In view of these statutory provisions, when did the liability of these defendant stockholders accrue? The statute fixed the liability upon the fact of insolvency; and the commissioner ascertained the fact of insolvency when he had completed his investigation of the bank's affairs on August 18, 1914. Whether an earlier date for fixing the stockholders' liability might be logically reasoned out, need not be decided. Was the liability complete and absolute on August 18? We find nothing in the statute giving the commissioner power to defer the maturity of the liability; nothing to suggest that the date when payment upon the liability should be made was dependent upon his grace, courtesy, or forbearance. It is argued that the Arkansas statute is largely a copy of the federal bank act; that the duties and powers of the bank commissioner are analogous to those of the federal comptroller of the currency; and that the federal decisions touching liability of stockholders are that such liability is not due, does not mature, until the necessity to collect it is determined, the amount fixed, and the time of payment prescribed. And because the Arkansas stat...
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