Dempster v. Ashton
| Citation | 250 N.W. 917,125 Neb. 535 |
| Decision Date | 16 November 1933 |
| Docket Number | 28589 |
| Parties | E. J. DEMPSTER, RECEIVER OF DUNBAR STATE BANK, APPELLANT, v. WILLIAM S. ASHTON ET AL., APPELLEES: FIRST NATIONAL BANK OF OMAHA ET AL., INTERVENERS, APPELLANTS |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In pursuing the remedy provided by section 24-213, Comp. St 1929, " Creditors of an insolvent corporation cannot maintain an action against a part of the stockholders for the payment of corporate debts until it is shown that the stockholders who are not made parties defendant and who are not served with process are nonresidents of the state or for other good and sufficient reason cannot be reached by the process of the court." Gedney Co. v. Sanford, 105 Neb. 112 , 179 N.W. 385.
2. Certain statements appearing in the opinion in Bourne v. Baer, 107 Neb. 255, 185 N.W. 408, examined and held obiter dicta.
Appeal from District Court, Otoe County; Begley, Judge.
Suit by E. J. Dempster, receiver of the Dunbar State Bank of Dunbar (E. H. Luikart, substituted receiver), against William S. Ashton and others, wherein the First National Bank of Omaha and others intervened. From an adverse decree, plaintiff and interveners appeal.
Affirmed.
F. C. Radke, Barlow Nye, Albert S. Johnston and Thomas E. Dunbar, for receiver, appellant.
Finlayson, Burke & McKie, for interveners, appellants.
Jessen & Dierks, George H. Heinke, D. W. Livingston, Tyler & Peterson, B. M. Spencer, Edwin Moran, William H. Pitzer and Marshall Pitzer, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and SHEPHERD, District Judge.
This was, as evidenced by plaintiff's amended petition, a proceeding in equity against seventy-eight persons named therein, alleged to be stockholders in the Dunbar Grain Company, a bankrupt corporation, commenced by E. J. Dempster, receiver (E. H. Luikart substituted receiver) of the Dunbar State Bank to recover for the bank and the other creditors of the grain company similarly situated the liability imposed by section 24-213, Comp. St. 1929, for that company's failure to give notices annually of the amount of its existing debts.
The original petition filed November 1, 1930, set forth the items of indebtedness due the petitioner, pleaded the names of the alleged stockholders and the exhaustion of the corporate assets, and contained a paragraph alleging in substance that the subscribers of the capital stock of the grain company had not paid the full amount of such subscriptions. The prayer of this petition included: "That the defendants and each of them are jointly and severally liable for the payment of said amounts to the amount of their unpaid subscriptions to the capital stock of the Dunbar Grain Company, a corporation, and in addition thereto in the amount of the capital stock of said corporation owned by each of them," etc.
To the original petition of the plaintiff George Roos and Mary Roos, for themselves, and the First National Bank of Omaha, Nebraska, filed petitions of intervention against the identical defendants named in the original petition, set forth their respective claims, and alleged the amount remaining unpaid thereon; admitted and incorporated the charge that the original subscriptions for the stock of the grain company had never been fully paid, and substantially admitted all facts alleged in the original petition, including a total failure to comply with the statute requiring the publication by corporations of notices of their existing indebtedness. The pleadings of the interveners were not thereafter amended. However, on December 15, 1930, the plaintiff filed an amended petition which was subsequently again amended as hereinafter set forth.
On January 25, 1932, upon motion in writing by plaintiff, leave was given by the district court to make Albert Rambat a party defendant and for leave to amend the petition accordingly. On that day summons was issued in this cause and was duly served on Albert Rambat on January 26, 1932. Thereafter the defendant Rambat demurred to the amended petition, as amended January 25, 1932, "for the reason that said amended petition as amended January 25, 1932, discloses that any cause of action in favor of the plaintiff and against this defendant accrued more than one year prior to the time that he was made a party defendant herein and is barred by the statute of limitations." It appearing from the record then before the court that plaintiff's cause of action had accrued not later than April 4, 1930, this demurrer the district court sustained, and plaintiff's action as to this defendant was thereupon dismissed. Appellant and interveners do not challenge the correctness of this dismissal.
It appears from the present record as an undisputed fact that one Albert Rambat, a resident of Otoe county, became a stockholder of the Dunbar Grain Company while it was a going concern; that the stock records of that corporation disclosed that long prior to the commencement of the present litigation, to wit, September 26, 1925, certificate of stock No. 84 had been issued to him, which in terms was "transferable only on the books of this corporation in person or by attorney upon surrender of this certificate properly indorsed." The corporate record was for a long time prior to the commencement of this action, and thereafter for a period of time continued to be, in the possession of the duly appointed and qualified trustee in bankruptcy of the grain company, whose residence was in the county where this action was instituted. Indeed, prior to his employment in the instant case one of plaintiff's attorneys had this corporate record in his possession and caused a list of the stockholders of the Dunbar Grain Company to be copied by a person in his employ, who it seems inadvertently omitted from the copy thus made the name of Albert Rambat. The entries in the stock record also disclosed no transfer by Rambat of the stock issued to him, and in fact none had ever been made, and he was at the time of the commencement of this proceeding, and thereafter continued to be in truth and in fact, a stockholder of the Dunbar Grain Company. However, his name as a stockholder was, due to the error of the copyist above referred to, omitted from the petition, from plaintiff's amended petition as originally filed, and was wholly omitted from the pleadings of the interveners.
After the dismissal of Rambat issues were duly made up between the plaintiff, the interveners, and the defendants, one of which was a challenge to the pleadings of plaintiff and interveners based upon alleged defect of parties defendant. On the hearing on the merits these issues thus joined were determined in favor of the defendants, and the proceedings of plaintiff and interveners dismissed. They appeal.
A single question is decisive as to appellants' rights in this hearing. The district court held that the failure of plaintiff and interveners to seasonably make Rambat a party defendant created a defect of parties defendant, and no recovery could be had in the present action.
On this subject, in the thirteenth paragraph of its decree, the trial court employed the following language:
"On the issue presented by the several answers of the defendants to the amended petition of plaintiff and the petitions of intervention herein, that there is a defect of parties defendant by reason of the fact that all resident solvent stockholders of Dunbar Grain Company were not made defendants, the court finds in favor of the defendants and against the plaintiff and all interveners; that all of the stockholders of Dunbar Grain Company were not made parties defendant to this action; that Albert Rambat was at the time of the commencement of this action a stockholder in Dunbar Grain Company, a resident of Otoe county, Nebraska, and solvent, and that his omission as a party defendant in this action until January 25, 1932, is not excused by the facts pleaded and shown in evidence by and on behalf of plaintiff and the said interveners; that the judgment of dismissal as to said Albert Rambat of this action heretofore entered herein was made necessary by the omission and neglect of plaintiff to make said Albert Rambat party defendant herein until January 25, 1932, at which time the statute of limitations was available to said Albert Rambat as a defense, and was by him pleaded and sustained; that he is a necessary party defendant in said action and that by reason of plaintiff's said omission and neglect to make him party defendant not in any way waived by the other defendants, neither the plaintiff nor the petitioners in intervention can now maintain this action against the defendants." Thereafter the cause was dismissed for want of equity.
After a careful reading of the record we concur in the view expressed by the trial court, that the omission of Albert Rambat as a party defendant in this action until January 25, 1932, is not excused by the facts pleaded and established by the evidence.
The sole question that remains is: Was he a necessary party in the sense of being an indispensable party under the facts disclosed by the record, in view of the form of the action and the nature of the remedy sought?
The following constitutional and statutory provisions are pertinent:
Section 4, art. XII of our Constitution, provides: "In all cases of claims against corporations and joint stock associations the exact amount justly due shall be first ascertained, and after the corporate property shall have been exhausted the original subscribers thereof shall be individually liable to the extent of their unpaid subscription, and the liability for the unpaid subscription...
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