Fitzgerald's Estate v. Union Sav. Bank of Lincoln

• Court: Supreme Court of Nebraska
• Writing for the Court: PER CURIAM.
• Citation: 65 Neb. 97,90 N.W. 994
• Parties: FITZGERALD'S ESTATE ET AL. v. UNION SAV. BANK OF LINCOLN.
• Decision Date: 04 June 1902

65 Neb. 97
90 N.W. 994

FITZGERALD'S ESTATE ET AL.
v.
UNION SAV. BANK OF LINCOLN.

Supreme Court of Nebraska.

June 4, 1902.

Syllabus by the Court.

[90 N.W. 994]

1. A claim upon a stock subscription payable on call of the directors does not accrue, within the meaning of section 262, c. 23, Comp. St., until a call is made, and then only for the amount of the call.

2. Creditors of an estate are not required to present their claims to the county court, or to the commissioners appointed to examine claims by formal pleadings. A statement of the nature and amount of the claim in the ordinary form of an account or claim bill is sufficient.

3. On appeal to the district court from an order of the county court allowing or rejecting a claim against an estate, pleadings need not be filed unless directed by the court.

4. Such appeal, as in all other cases, should be tried upon the same issues as those presented below.

5. Where there are no pleadings in the district court, so that it cannot be known in advance of trial that either party expects to raise issues not presented below, it is proper to object to evidence offered in support of such new issues at the trial; and the evidence is properly excluded in case it clearly appears

[90 N.W. 995]

from the transcript that such issues are raised on appeal for the first time.

6. Where a claim against an estate has been assigned after filing, it may be prosecuted in the name of the person by whom it was filed.

7. If made in good faith for the purposes of the corporation, stockholders, when sued upon their subscription, cannot question the necessity of or occasion for a call. The necessity or advisability of making it rests entirely with the directors or officers of the corporation to whom the power has been intrusted.

8. There is no abuse of discretion in refusing leave to file a supplemental answer during the progress of a trial, where no reason appears for not making the application before trial, and such application is made without notice and without tendering any proposed answer.

Commissioners' opinion. Department No. 2. Error to district court, Lancaster county; Cornish, Judge.

Action by the Union Savings Bank of Lincoln, Neb., against the estate of John Fitzgerald, deceased, and Mary Fitzgerald, administratrix. Judgment for plaintiff, and defendants bring error. Affirmed.

James Manahan and T. J. Doyle, for plaintiffs in error.

Lambertson & Hall, for defendant in error.

POUND, C.

In 1886 John Fitzgerald subscribed for $10,000 of the capital stock of the Union Savings Bank, then newly organized, paying 10 per cent. down, and agreeing to pay the remainder “upon call of the proper officers.” He died in December, 1894, before any call was made, and on September 30, 1895, the county court entered an order in the matter of his estate barring all claims not theretofore exhibited. Afterwards, on January 13, 1896, the directors made a call for 25 per cent. of all subscriptions. A claim against the estate, based upon this call, was filed in the county court on March 2, 1896. A second call also for 25 per cent., was made on April 15, 1897; and a claim against the estate was filed accordingly on January 26, 1898. The administratrix filed written objections to these claims, alleging that they were barred by the order of September 30, 1895, and that they had not been filed seasonably, and that the court had no jurisdiction to entertain them. The county court allowed each claim. Each was taken to the district court on appeal, and judgments were rendered against the estate, from which error is prosecuted; this proceeding involving the claim upon the first call, and No. 11,659, argued and submitted at the same time and upon the same briefs, involving the claim on the second call.

We are well satisfied that the claims were filed in due time, under the provisions of section 262, c. 23, Comp. St., and that the general order barring claims did not affect them in any way. The portion of that section material to this case reads as follows: “If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims, the person having such claim may present it to the probate court and prove the same at any time within one year after it shall accrue or become absolute.” The claims upon these calls did not accrue till the several calls were made. There was no claim upon the subscription which could be maintained in any sort of judicial proceeding until the directors or other proper authority called for a further payment. Even then no claim accrued for anything beyond the amount of the call. It is well settled and self-evident that no action may be maintained upon a subscription payable in installments on call of the directors unless or until there has been a proper call. Chandler v. Siddle, 3 Dill. 477, Fed. Cas. No. 2,594; Hotel Co. v. I'Anson's Ex'rs, 43 N. J. Law, 442; Braddock v. Railroad Co., 45 N. J. Law, 363; Banet v. Railroad Co., 13 Ill. 504;Insurance Co. v. Moore, 84 Ill. 575; Bouton v. Dock Co., 4 E. D. Smith, 420. If the stockholder dies, the estate takes the stock burdened with the contract to pay the amount subscribed therefor, as called; and calls, when made, are proper to be allowed as claims. Davis v. Weed, 44 Conn. 581, Fed. Cas. No. 3,658. But no claim accrues against the estate until a call is made, and until that time the statutes of limitation and nonclaim do not begin to run. Priest v. Glenn, 4 U. S. App. 478, 2 C. C. A. 305, 51 Fed. 400; Telegraph Co. v. Gray, 122 Ill. 630, 14 N. E. 214;Kilbreath v....