Hencke v. Twomey

• Decision Date: 26 October 1894
• Parties: HENCKE v. TWOMEY ET AL.
• Court: Minnesota Supreme Court

58 Minn. 550

60 N.W. 667

HENCKE

v.TWOMEY ET AL.

Supreme Court of Minnesota.

Oct. 26, 1894.

(Syllabus by the Court.)

1. An action against a stockholder in a corporation to recover on his personal liability, under the statute, for corporate debts, is one “arising on contract,” within the meaning of Gen. St. 1866, c. 66, § 49.

2. Where jurisdiction is obtained, in an action against a nonresident, by attaching his property and publishing the summons, the attachment lien is not waived or lost by entering a general money judgment and issuing a general execution, where the attached property is sold on the execution.

Appeal from district court, St. Louis county; Charles L. Lewis, Judge.

Action by Fred Hencke against William K. Twomey and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. W. Bull and J. W. Reynolds, for appellants.

S. T. & Wm. Harrison, for respondent.

MITCHELL, J.

The title to the premises in controversy all depends upon the validity of the judgment rendered in the district court of St. Louis, in 1879, in favor of the receiver of an insolvent national bank against Mrs. Moses, a stockholder, to recover an assessment made by the comptroller of the currency on her personal liability for the debts of the bank. Mrs. Moses being a nonresident, she was proceeded against by attachment of the real estate in question, and by publication of the summons. Under the statute then in force, in actions for the recovery of money the summons could be served on a nonresident by publication only when the action arose on contract; and it is urged that the judgment referred to was void because an action against a stockholder of a corporation to recover on his personal liability, under the statute, for the debts of a corporation, is not one “arising on contract.” Gen. St. 1866, c. 66, § 49. The point is not well taken. Upon becoming a stockholder, a party assumes the obligations imposed by the statute, which forms a part of the contract. The contract is one implied by statute. While the action of the comptroller in making the assessment is essential to the receiver's right of action, yet it is not the ground of the stockholder's liability. His liability grows out of his implied contract.

2. The summons in the action was in the form prescribed for actions on contract for the recovery of money only; the judgment was in form a general one for the recovery of money; and the execution issued was general, and not special. Exception is...