German Nat. Bank of Lincoln v. Farmers' & Merchants' Bank of Holstein

• Court: Supreme Court of Nebraska
• Writing for the Court: HARRISON
• Citation: 74 N.W. 1086,54 Neb. 593
• Decision Date: 21 April 1898
• Parties: GERMAN NAT. BANK OF LINCOLN v. FARMERS' & MERCHANTS' BANK OF HOLSTEIN ET AL.

54 Neb. 593
74 N.W. 1086

GERMAN NAT. BANK OF LINCOLN
v.
FARMERS' & MERCHANTS' BANK OF HOLSTEIN ET AL.

Supreme Court of Nebraska.

April 21, 1898.

Syllabus by the Court.

1. If there is no bill of exceptions in the record, or the same has been quashed, questions which, for their examination, require reference to a bill of exceptions, cannot be considered.

2. “The word ‘ascertained,’ in section 4, art. 11, of the constitution, means ‘judicially ascertained,’ and to ‘judicially ascertain’ the amount due from a corporation to a creditor thereof means to have the finding and judgment or decree of a court as to such amount.” Globe Pub. Co. v. State Bank of Nebraska, 59 N. W. 683, 41 Neb. 175.

3. The foregoing is also applicable to the liability of a stockholder in a banking corporation as fixed by section 7 of the same article of the constitution. Trust Co. v. Funk, 68 N. W. 520, 49 Neb. 353.

4. The portion of the petition in relation to the ascertainment of the amount due a creditor from the corporation, and exhausting the assets of the latter, held sufficient against attacks of the time and manner made.

5. An action such as this should be for the benefit of all the creditors of the corporation against whose stockholders it is commenced.

6. The bank, the liability of whose stockholders was sought to be enforced herein, held not a necessary party to the action, but not an improper one.

7. This and similar actions are within the equity jurisdiction of the courts, and call for the exercise of their equity powers.

8. The general nature of the relief to be afforded in its main and ordinary elements outlined herein.

Appeal from district court, Lancaster county; Hall, Judge.

Action by the German National Bank of Lincoln against the Farmers' & Merchants' Bank of Holstein and others. Judgment for plaintiff, and defendants appeal. Modified.

[74 N.W. 1086]

Boehmer & Rummons, for appellants.

Abbott, Selleck & Lane, for appellee.

HARRISON, C. J.

Action was instituted by the appellee for itself and for the benefit of all other creditors of the Farmers' & Merchants' Bank of Holstein to recover of the stockholders of the latter the amount for which each as a stockholder of the corporation was liable to the creditors of the corporation. It was of the allegations of the petition that: “Plaintiff further says that since the execution, delivery, and transfer of said notes the said defendant the Farmers' & Merchants' Bank had ceased to do business, and had been dissolved, and is now wholly and completely insolvent, and unable to pay its obligations hereinbefore set forth; that all the assets ever held by said bank, including the amount of the notes above described, have been appropriated and used by the said bank or its officers for the purpose of paying the debts, or dividing among its several stockholders, and that there are no assets or property of any kind or description belonging or owing to said bank with which the notes hereinbefore mentioned and described could be paid, and that said bank has no assets with which to pay these obligations, except as hereinafter described; that the exact amount justly due has heretofore been ascertained, and the corporate property has been wholly and completely exhausted.” It was of the defenses set forth in answer for all defendants except the corporation that no judgment had been obtained against appellant bank for the amount of the notes, the indebtedness evidenced by which furnished a basis for the present action. In a trial of the issues joined the appellee was successful, and the other parties have perfected this appeal.

The bill of exceptions herein has, on motion, been quashed, and all questions which, for their due consideration, would require a reference to that document, must be passed without examination. It is of the points of argument for appellants that the petition was insufficient, in that it contained no statement of the facts relative to the due ascertainment of any sum due from the Farmers' & Merchants' Bank of Holstein, and the exhaustion of the assets thereof. We have hereinbefore quoted the averments of the petition on this subject, and it remains to determine whether they were sufficient or insufficient. In section 4 of the article of the constitution entitled “Miscellaneous Corporations” it is provided: “In all cases of claims against corporations and joint stock associations, the exact amount...