Herron v. Vance

• Decision Date: 06 February 1861
• Citation: 17 Ind. 595
• Parties: Herron, Receiver of the Savings Bank of Indiana v. Vance and Others
• Court: Indiana Supreme Court

17 Ind. 595

Herron, Receiver of the Savings Bank of Indiana v. Vance and Others

Supreme Court of Indiana

February 6, 1861

APPEAL from the Fayette Common Pleas.

The judgment is affirmed, with costs.

John S Reid, for the appellant.

James C. McIntosh, C. B. Smith, Geo. Holland and Wilson &amp Newkirk, for the appellees.

OPINION

Hanna J.

The appellant was the plaintiff below. A demurrer was sustained to his complaint, which is the only error complained of.

It was averred in the complaint that the Savings Bank of Indiana was organized under the act of May 28 1852, 1 R. S. 1852; and that on December 25, 1856 the appellees were owners and stockholders of the capital stock of said bank, and were, each in his own right, shareholders of said banking association, and held the number of shares respectively, &c., as set forth in a schedule therewith filed, containing a list of the names of the stockholders, the number of shares, &c., and a copy of the by-law under which they were subscribed.

It is further averred that certain of said defendants, named, were the original stockholders at the organization, &c., to the requisite amount of fifty thousand dollars, all of which remains unpaid; that in 1857 said association became insolvent, their notes protested, their securities sold by the auditor of State, and applied pro rata to the payment of said circulation to the amount of sixty-two cents to the dollar, leaving unpaid thirty-eight cents to the dollar; that the debts owing by said association amount to ten thousand dollars, and judgments against the same to five thousand, making, together, fifteen thousand dollars; and that the assets amount to not over three hundred dollars, which have come to the hands of said plaintiff.

That said stockholders have failed to pay off their stock; that to pay said debts it will require the whole amount due on said stock; and an amount from each stockholder, in addition, equal to the amount of stock held by each subscriber. That the auditor of State had failed to institute any proceedings for the redemption of the balance of said circulating medium. Prayer, that the affairs of said bank should be settled, and said stockholders compelled to pay the balance due on their stock, and such other sum as might be necessary, not exceeding, &c., so as to enable plaintiff to pay said debts, &c.

The demurrer assigned for cause of objection, that plaintiff had no capacity to sue; that there was a defect of parties defendant; that causes of action were improperly united; that the complaint does not state facts sufficient.

The general act, under which the banking association was organized, does not provide for the appointment of a receiver, otherwise than when it "shall violate any of the provisions of this act, such associations may be proceeded against and dissolved by the court, on application by the auditor, or any creditor thereof, in the same manner as any moneyed corporation may be proceeded against and dissolved." § 28. By another statute, 2 R. S., p. 198, provision is made for proceedings against corporations that may do or omit acts which "amount to a surrender or forfeiture of their rights and privileges as a corporation," and if judgment be rendered against any corporation, the "Court shall restrain the corporation, appoint a receiver of its property and effects, take an account, and make a distribution thereof among the creditors." An act in relation to receivers provides, among other things, that a receiver may be appointed by the Court "when a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights," and that he may, under the control of the Court, bring and defend actions, collect debts., 2 R. S., §§ 199, 205, p. 73, "and, generally, do such acts as the Court may authorize. Id.

The first question presented is as to the right of Herron to sue in his own name. In the complaint he represents himself to be a receiver, but does not disclose by what authority he became such; nor, if appointed under these statutes, what acts the Court had authorized him to perform whether he had been directed to sue for unpaid subscriptions of stock. It appears that, formerly, he would not have been authorized to sue in such an instance, that is, if regarded as a mere receiver in chancery. Ingersoll v. Cooper, 5 Blackf. 426; 2 St. Eq., § 833; Mann v. Pentz, 3 Comst. 423; Edwards on Receivers, p. 3. The question, therefore, is, whether these statutes confer authority to sue in this case in the name of the receiver, and if so, whether enough is shown in the complaint? In this connection it may throw some light, in giving the proper construction, to notice the twelfth section of an act establishing general provisions respecting corporations, 1 R. S., p. 239, that provides...