Howell v. Roberts

• Decision Date: 06 May 1890
• Citation: 29 Neb. 483,45 N.W. 923
• Parties: HOWELL ET AL. v. ROBERTS ET AL.
• Court: Nebraska Supreme Court

29 Neb. 483

45 N.W. 923

HOWELL ET AL.

v.ROBERTS ET AL.

Supreme Court of Nebraska.

May 6, 1890.

Syllabus by the Court.

Section 136, c. 16, Comp. St., which makes stockholders in a corporation liable for debts contracted by the corporation while its officers are in default in publishing an annual notice stating “the amount of all the existing debts of the corporation,” is quasi penal, but is not a penalty; the evident purpose being to secure the rights of creditors, and an action to recover such debts is not barred by the statute of limitations in one year.

Error to district court, Harlan county; GASLIN, Judge.Morning & Keester, for plaintiffs in error.

C. C. Flansburg, for defendants in error.

MAXWELL, J.

This action is brought upon four drafts, each for $1,200, which were drawn upon and accepted by the Nebraska Lumber Company of Red Cloud. The drafts are dated December 5, 1885, and were payable, respectively, February 10, 1886, February 25, 1886, March 15, 1886, and March 25, 1886. The drafts not being paid, an action was brought on the 28th of December, 1887, against the defendants, who were the stockholders in the corporation. A demurrer to the petition was sustained in the court below, and the action dismissed. The plaintiff in the petition, after stating the incorporation of the lumber company, and that the defendants were the stockholders thereof, the acceptance of the drafts, etc., alleges: “That said Nebraska Lumber Co., its officers, agents, directors, stockholders, managers, or servants, did not at any time post, in a conspicuous place, at the places of doing business of said corporation, subject to public inspection, a copy of the by-laws of said corporation, and the names of all officers appended thereto; and said Nebraska Lumber Company neglected to give notice annually in some newspaper printed in the county or counties, in which its business was transacted, (there being newspapers printed in the said counties,) of the amount of all existing debts of the corporation, signed by the president and a majority of the directors, as required by the statutes of the state of Nebraska; that all of said defendants were stockholders in said Nebraska Lumber Company, and were such stockholders at the time of such default in failure to give the notice first above mentioned, and were such stockholders at the time of the failure to post a notice stating the names of officers and the place of doing business, and were stockholders at the time of the failure to give a notice of indebtedness required by law, as above stated, and were such stockholders at the time the debt owing to this plaintiff was contracted; that by reason of such neglect and default the said defendants, stockholders as aforesaid, would become liable for the debt now owing from the Nebraska Lumber Company to this plaintiff; that said corporation was at the time the indebtedness herein stated was contracted, and now is, insolvent.”

There are four counts in the petition, one upon each draft. It is sought to make the stockholders personally liable because they failed to publish the annual statement required by law. Section 136, c. 16, Comp. St., provides that “every corporation hereafter created shall give...