Fors v. Thoman

• Decision Date: 04 June 1934
• Docket Number: No. 27.,27.
• Citation: 255 N.W. 297,267 Mich. 148
• Parties: FORS v. THOMAN et ux.
• Court: Michigan Supreme Court

267 Mich. 148

255 N.W. 297

FORS

v.THOMAN et ux.

No. 27.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Circuit Court, Ingham County, in Chancery; Glenn Warner, Acting Circuit Judge.

Suit by Carl A. Fors, receiver of the American State Savings Bank, against Frederick J. Thoman and Nettie Avery Thoman. From a decree in favor of plaintiff, defendants appeal.

Affirmed.

Argued before the Entire Bench, except BUSHNELL, J.

Ernest C. Smith, of Lansing, for appellants.

Kelley, Sessions, Warner & Eger, of Lansing, for appellee.

NELSON SHARPE, Chief Justice.

The plaintiff was appointed receiver of the American State Savings Bank by the circuit court for the county of Ingham, in chancery, on February 6, 1932, on petition of the state banking commissioner. On October 7, 1932, the court, on petition of the commissioner, ‘and being of the opinion that it is necessary in order to pay the liabilities of said Bank that the statutory liability of the stockholders of said Bank should be enforced,’ entered an order assessing the stockholders the amount of their stock at the par value thereof, payable 30 days thereafter, and directed the receiver to proceed with its collection. The order further provided: ‘That the liability created by this assessment may be enforced by said Receiver against the stockholders of said Bank in suits at law and/or in equity.’

On December 30, 1932, the bill of complaint herein was filed to enforce the payment of said assessment. The plaintiff had decree. The defendants have appealed therefrom.

There is no dispute about the facts. Frederick J. Thoman had been the owner of stock in the bank since the year 1915. In March, 1930, in order to permit certain stock to be sold to the Detroit Bankers' Company, he surrendered his certificate, and, at his request, the balance of the stock was reissued in the name of ‘Frederick J. and/or Nettie Avery Thoman.’ It is conceded that Nettie Avery Thoman was the wife of Frederick J. Thoman, and had no knowledge that her name was placed in the certificate and paid no consideration to her husband therefor. In June, 1930, the bank issued a ‘dividend check’ in the amount of $822, payable to ‘Frederick J. or Nettie Avery Thoman.’ This check came to their residence during the absence of Mr. Thoman, and she indorsed it and deposited it in a joint bank account in the city of Jackson, where they resided. Both she and her husband checked upon this account. Other dividend checks were later received, payable to the same persons, and indorsed and deposited by Mr. Thoman in the joint account.

The defendants were residents of the county of Jackson at the time the suit was instituted. After service upon them, they moved to dismiss, for the reason that the chancery court had no jurisdiction of the subject-matter as set up in the bill of complaint. The statute which imposes the liability upon stockholders (Comp. Laws 1929, § 11945) provides: ‘Such liability may be enforced in a suit at law or in equity by any such bank in process of liquidation, or by any receiver, or other officer succeeding to the legal rights of said bank.’

The purpose of the Legislature in providing that suits to enforce such liability might be brought at law or in equity seems apparent. It was deemed advisable that the liability of stockholders should be determined by the court in which the receivership proceedings were pending. Otherwise, the anomaly might be created of a finding of liability in one circuit court and denial of it in another. Of course, review in this court might be had, but by the provision in the statute an orderly proceeding was provided under which the receiver and the rights of creditors would not be burdened by the expense of unnecessary litigation and decision rest in the court in which the proceedings were pending. We cannot find that the constitutional rights of the defendants have been affected thereby.

Counsel insists that under the facts as stated no personal liability rests upon the defendant Nettie Avery Thoman. Our statutes relating to the personal liability of a married woman, as many times construed by this court (Kies v. Walworth, 250 Mich. 34, 229 N. W. 519;Seymour v. Powers, 255 Mich. 624, 238 N. W. 630), are not here applicable. The liability of a stockholder in a bank is imposed by the statute. It was created for the protection of the creditors of the bank. Although in a limited sense there is an element of contract when one becomes a stockholder, the liability for an assessment is based on the provisions of the statute.

In 3 R. C. L. p. 402, it is said: ‘Where the statute in general terms imposes upon the stockholders of a bank liability for its debts, a married woman who owns stock in a bank is not exempt on account of coverture from such liability. She incurs liability by virtue of the statute as owner of the stock and not by contract, and where she is capable of becoming a stockholder her liability does not depend upon her general power to contract.’ See Christopher v. Norvell, 201 U. S. 216, 26 S. Ct. 502, 50 L. Ed. 732,5 Ann. Cas. 740, and cases cited therein; Thomas v. Commonwealth Trust Co. (D. C.) 2 F. Supp....