Hill v. May
| Citation | 115 Neb. 690,214 N.W. 637 |
| Decision Date | 01 July 1927 |
| Docket Number | No. 25881.,25881. |
| Parties | HILL v. MAY ET AL. |
| Court | Supreme Court of Nebraska |
HILL
v.
MAY ET AL.
No. 25881.
Supreme Court of Nebraska.
July 1, 1927.
In a suit brought by a receiver of an insolvent state bank, the district court will not take jurisdiction in equity to determine the liability of the makers on notes given to the bank as a pledge that the stockholders will pay the levy of an assessment of 100 per cent. on the capital stock, where such makers are all united in one suit and jurisdiction is sought to be maintained on the ground of thus avoiding a multiplicity of suits, and where there is no question of accounting, but the claim against each maker is an independent and purely legal demand for the amount due on the note.
Appeal from District Court, Dawes County; Westover, Judge.
Action by Fay C. Hill, receiver of the Citizens' State Bank of Chadron, against Louis E. May and others, on notes. From a decree of dismissal as to certain defendants, and sustaining special appearances of other defendants, plaintiff appeals. Affirmed.
John M. Stewart, of Lincoln, E. D. & F. A. Crites, of Chadron, and C. M. Skiles, of Lincoln, for appellant.
Crossman, Munger & Barton, of Omaha, Allen G. Fisher and Samuel L. O'Brien, both of Chadron, and Courtright, Sidner, Lee & Gunderson, of Fremont, for appellees.
Heard before GOSS, C. J., and ROSE, DAY, EBERLY, and THOMPSON, JJ., and LESLIE and SHEPHERD, District Judges.
GOSS, C. J.
The plaintiff appeals from a final order and decree of the district court sustaining demurrers of six defendants, and, upon refusal of the plaintiff to plead over, dismissing the action as to these six defendants, and sustaining the special appearances of the remaining two defendants.
A statement of the main facts alleged in the petition is necessary to an understanding and disposition of the case. The plaintiff is the receiver of the Citizens' State Bank of Chadron, in Dawes county. The bank was capitalized at $75,000 and was under the jurisdiction of the department of trade and commerce. On January 17, 1925, the department took possession of the property and business of the bank to examine into its condition, and on January 19, 1925, after examining into its affairs for two days, a special examiner of the department, acting for the department, informed the officers of the bank that, on account of the impairment of its capital stock and the lack of cash reserve, the
[214 N.W. 638]
bank could not continue as a going concern nor reopen for business unless its cash reserve was replenished and the impairment of the stock made good. Thereupon on the same day there was held a stockholders' meeting at which more than two-thirds of the stock was represented. The directors were authorized by a unanimous vote of these stockholders to levy an assessment of 100 per cent. on its capital stock. The stockholders also authorized, upon consent thereto by the department, a reduction of the capital stock from $75,000 to $50,000, directed the board to charge off the surplus account of $25,000 and use that amount and the amount of the reduction of capital in taking out worthless paper from the bank. All of the defendants were present in person and voted for the resolutions except defendant Joseph H. May, who was represented by his proxy, defendant Louis E. May, who, as such proxy, voted for the resolutions. Louis E. May was not a stockholder, nor was the defendant Charles H. Loewenthal who represented Ben Loewenthal. On the same day the board of directors met and made the assessment authorized, aggregating $50,000, to be paid on or before February 12. The defendants, as a pledge to secure the payment of said assessments, thereupon executed their several negotiable promissory notes payable to the bank, or order, totalling...
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