Haight v. Stuart

• Decision Date: 08 January 1926
• Parties: W. R. HAIGHT ET AL., DEFENDANTS IN ERROR, v. F. J. STUART ET AL., PLAINTIFFS IN ERROR.
• Court: Missouri Court of Appeals

278 S.W. 1091

220 Mo.App. 78

W. R. HAIGHT ET AL., DEFENDANTS IN ERROR, v. F. J. STUART ET AL., PLAINTIFFS IN ERROR.

Court of Appeals of Missouri, Springfield

January 8, 1926

Writ of Error to the Circuit Court of Howell County.--Hon. E. P Dorris, Judge.

AFFIRMED.

Judgment affirmed.

J. N Burroughs, of West Plains, for plaintiffs in error.

O. L Haydon, of West Plains, for defendants in error.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

Defendants in error filed an application to dissolve the Brandsville State Bank at the October Term, 1924, of the Howell county circuit court, and plaintiffs in error were made defendants therein. The petition for dissolution alleges, among other things, that the Brandsville State Bank was, on the 16th day of January, 1912, duly incorporated under the laws of Missouri, with a capital stock of $ 10,000 divided into 100 shares of the par value of $ 100 each; that plaintiffs and defendants constitute all the shareholders; that W. R. Haight, Amy R. Haight, S. G. Ramsey, Charles v. Lewis and George Hilton constitute the board of directors. The petition further sets forth the amount of the outstanding obligations, an inventory of all assets, including furnishings, office fixtures, bills receivable and cash. It then alleges as follows:

"Your petitioners say and aver that the Brandsville State Bank has been running at a loss for several years, that as far back as December, 1921, the then state bank commissioner, J. H. Hughes, found from the bank's report to his office that its capital stock had been impaired in excess of $ 1500, and that such condition could not be permitted to exist, and later directed the officers of said bank to pay off its depositors before January 1, 1923, and the board of directors of said Brandsville State Bank found as a matter of fact that owing to the prior discontinuing of several of the industries in its vicinity upon which it had largely depended for business, that its necessary expenses were exceeding its income which with its losses had impaired its capital stock, and concluded that the value of the shares of stock of said corporation had been so reduced by losses and otherwise, as not to afford sufficient security to those who might deal with said corporation, and that the value of the property and effects of said corporation had been so far reduced by losses as not to afford sufficient security to those who might deal with said corporation, and for the reasons aforesaid the board of directors of said corporation did on December 14, 1922, adopt a resolution authorizing the officers of said corporation and directing them at that time to pay off all of its depositors and to proceed to the winding up of the business of the said bank to the end that its assets might be liquidated and the corporation dissolved; (italics ours) in pursuance of all of which the officers of said corporation, did in the month of December, 1922, pay each and all of its depositors in full and all other claims and demands of whatsoever kind and character, and then and there proceeding the payment of said depositors cause said corporation to cease to do the business for which it was organized, and has continued to refrain from doing any banking business since that time.

"Wherefore, your petitioners say and aver that the value of the shares of stock of said Brandsville State Bank has become, and is at the filing of this petition so far impaired as not to afford sufficient security under the law, to those who might deal with said corporation.

"That the value of its property and effects and assets as a whole have become and are at the filing of this petition so far reduced in value by losses incident to the conducting of the business of an unprofitable business undertaking, so as not to afford sufficient security to those who may deal with said corporation."

The petition then prays that defendants be summoned, as required by section 9758, Revised Statutes 1919, and that the corporation be dissolved by decree of court. The petition is duly verified by affidavit of each plaintiff, one of whom purports to be president and another secretary of the board of directors of said bank. Defendant (plaintiffs in error here) demurred to the petitions on four grounds, as follows:

(1) That the petition did not state facts which would warrant the court in entering order of dissolution.

(2) That the circuit court has no power to dissolve a bank except through the State Bank Department and attorney-general of the State.

(3) That the petition does not state the bank was insolvent or that the stockholders assented to such dissolution as required by law.

(4) That the petition fails to state a cause of action.

The demurrer was overruled, to which ruling defendants excepted and refused to plead further. The trial court thereupon proceeded to hear the evidence and, after making a finding of facts sustaining all the allegations of the petition, ordered and adjudged, "That the Brandsville State Bank, a corporation, be and it is in all things hereby disincorporated and dissolved, and it is further ordered by the court that the president of and board of directors of said corporation, viz: W. R. Haight, Amy R. Haight, S. G. Ramsey, George Hilton, Charles H. V. Lewis, directors, W. R. Haight, being president, and Charles H. V. Lewis, secretary, of said board of directors, and said Lewis being also cashier, be, and they are designated as a board of trustees of said corporation, and directed to take charge of its assets with full power to sell its property and settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them; to sue for and recover such debts and property by the name of the trustees of such corporation, describing them by its corporate name and may be sued by the same name, and such trustees shall be jointly and severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that have come into their hands."

From that part of this judgment appointing the board of directors as receivers an appeal was taken to this court, and, thereafter, on motion of respondents, the judgment was affirmed for failure to comply with the rules. As no appeal lies from a judgment of dissolution we consider that judgment of affirmance a nullity and no further consideration should be given thereto. [Laws of Missouri, 1921, p. 266.]

Plaintiffs in error (defendants below) are now in this court on writ of error. In considering the demurrer but two questions are presented for our consideration. It is first contended that the petition is wholly defective because, under the State Banking Laws, there is no power or authority in the officers of a bank to wind up its affairs and procure a dissolution; that the three methods provided by our banking statutes are exclusive and a bank can only be dissolved (1) by unanimous action of the stockholders when the articles of incorporation so provides; (2) by action of the attorney-general at the instance of the bank commissioner; (3) when the action is taken by the bank commissioner himself.

It is conceded that the application for dissolution in the instant case is brought under the general law...