Hirning v. Kurle
| Decision Date | 26 January 1929 |
| Docket Number | 5712. [*] |
| Parties | HIRNING, State Superintendent of Banks, et al. v. KURLE. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.
Action by John Hirning, Superintendent of Banks of the State of South Dakota, and the Bank of Bowdle, against W. R. Kurle administrator of the estate of Jacob Kurle, deceased. The jury returned a verdict for plaintiffs, and, from a judgment for defendant, notwithstanding the verdict, and an order denying a new trial, plaintiffs appeal. Reversed and remanded, with directions.
A. L Beardsley, of Ipswich, and Williamson, Williamson & Smith, of Aberdeen, for appellants.
H. L Woodworth, of Ipswich, and Campbell & Fletcher, of Aberdeen for respondent.
Jacob Kurle died intestate January 21, 1921, owning 30 shares of capital stock of the Bank of Bowdle of the par value of $3,000. February 23, 1921, the three heirs at law of the decedent undertook to assign and transfer the certificate representing said 30 shares of bank stock to one Baumgardner. A few days later, apparently doubtful of the validity of such attempted transfer, defendant, W. R. Kurle, one of the three heirs at law of decedent intestate, petitioned the county court for an order to sell said bank stock, and the court ordered sale thereof upon 5 days' notice; whereupon, on March 9, 1921, the administrator purported to sell, assign, and transfer said bank stock to one Gross, and on the same day Gross transferred the same to the above-mentioned Baumgardner, which transfers were approved by the bank.
Notice to the creditors of Jacob Kurle, deceased, was duly given by publication in connection with the administration of his estate; the first publication being made on March 3, 1921, and the time for filing claims "against the said deceased" being limited to six months from the date of said publication.
On June 8, 1921, plaintiff, superintendent of banks, took charge of said Bank of Bowdle and operated it as a going concern until February 21, 1922, when he closed it for liquidation. It was established at the trial that the Bank of Bowdle was in fact insolvent at all times subsequent to June 8, 1921, and that its liabilities exceed its assets by approximately $70,000, being more than the total amount of its capital stock. After the closing of the bank, the superintendent of banks determined that the assets thereof were insufficient to pay its liabilities by an amount in excess of its total capital and proceeded to the enforcement of stockholder's liability. The Jacob Kurle estate has not been closed or finally distributed, and assets thereof are in the hands of the administrator.
The present proceeding was commenced by serving upon and filing with the administrator on March 28, 1922, a claim against said estate in the amount of $3,000, duly verified by plaintiff as superintendent of banks, and reciting as follows:
"Jacob Kurle was the owner of 30 shares of stock issued by the Bank of Bowdle, a corporation, located at Bowdle, South Dakota and was the owner of such stock at the time of his death, which occurred about the 21st day of February, 1921, and that said shares of stock were assigned by the heirs and the administrator of said estate to R. C. Baumgardner the latter part of February, 1921, and a new certificate issued by said Bank of Bowdle to R. C. Baumgardner on or about February 28, 1921; that said R. C. Baumgardner is insolvent; that the Bank of Bowdle is insolvent; that said Bank of Bowdle was insolvent at the time of the death of the said Jacob Kurle; that said Bank of Bowdle was insolvent at the time of the assignment of said shares of stock to said R. C. Baumgardner; that the full extent of said insolvency has not as yet been ascertained, but it has been ascertained within the past thirty days that said insolvency exceeds an amount equal to the capital stock of said bank, and that a 100% assessment has been levied by the superintendent of banks on behalf of said bank against the stockholders of said bank; and that there is now due the Bank of Bowdle and the superintendent of banks of...
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