Hastings v. Barnd

• Court: Supreme Court of Nebraska
• Citation: 55 Neb. 93,75 N.W. 49
• Parties: HASTINGS ET AL. v. BARND ET AL.
• Decision Date: 04 May 1898

55 Neb. 93
75 N.W. 49

HASTINGS ET AL.
v.
BARND ET AL.

Supreme Court of Nebraska.

May 4, 1898.

Syllabus by the Court.

1. The requirements of Const. art. 11, § 4, under the title “Miscellaneous Corporations,” that, before enforcement of individual liability of stockholders, there must be judicially ascertained the indebtedness proposed to be enforced, and that the assets of the corporation be first exhausted, held applicable to the stockholders' liability in banking corporations, as described in section 7 of the same article.

2. The liability of stockholders in banking corporations under section 7 aforesaid must be enforced by or on behalf of all creditors, and against all stockholders liable. A suit by and on behalf of one out of many creditors against certain selected stockholders will not lie.

3. Trust Co. v. Funk, 68 N. W. 520, 49 Neb. 353, followed.

Error to district court, Buffalo county; Neville, Judge.

Action by William D. Hastings and another against John Barnd and others. Defendants had judgment, and plaintiffs appeal. Affirmed.

[75 N.W. 49]

Wm. Gaslin, for plaintiffs in error.

W. L. Hand and Greene & Hostetler, for defendants in error.

IRVINE, C.

William D. Hastings and another, partners doing business under the name of Hastings & Son, sued John Barnd and several others, alleged to be stockholders of the Commercial & Savings Bank, a corporation, seeking to enforce an individual liability of the stockholders. Two of the defendants demurred to the petition, and their demurrer was sustained. The others answered, and, issues having been joined, the cause, as to them, was submitted to the court on a stipulation of facts, and the court found in favor of the defendants.

[75 N.W. 50]

A judgment of dismissal was accordingly entered, and the plaintiffs bring the case here for review. A consideration of the sufficiency of the petition is all that is required for a disposition of the case. It alleges that the Commercial & Savings Bank was a corporation organized under the laws of Nebraska, and engaged in the banking business; that in 1892 it became indebted to the plaintiffs in the sum of $796.16 for money deposited; that the bank has been declared insolvent, and a receiver appointed; that the defendants were stockholders at the time plaintiffs' debt was contracted and subsequently, the petition setting out the amount of stock held by each. It further alleged mismanagement by the officers, leading to the insolvency. It appeared inferentially that there...