London & North West American Mortgage Company v. St. Paul Park Improvement Company
| Decision Date | 05 July 1901 |
| Docket Number | 12,684 - (182) |
| Citation | 86 N.W. 872,84 Minn. 144 |
| Parties | LONDON & NORTH WEST AMERICAN MORTGAGE COMPANY v. ST. PAUL PARK IMPROVEMENT COMPANY and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by a judgment creditor of defendant corporation for sequestration of its property. Charles W. Farnham, having been appointed receiver of defendant, filed a petition, pursuant to Laws 1899, c 272, for an assessment of the stockholders. From separate orders, Otis, J., adjudicating and allowing the claims of plaintiff and other creditors, and directing such assessment W. T. Kirke and other stockholders appealed. Both orders affirmed.
Insolvent Corporation -- Sequestration.
Action for the sequestration of the property of the defendant corporation and the appointment of a receiver. The court appointed a receiver, and afterwards made its order adjudging and allowing the claims of creditors against the corporation, and a further order levying an assessment upon its stockholders, pursuant to Laws 1899, c. 272. Held:
Appeal.
1. Each of the orders is appealable.
Laws 1899, c. 272, Constitutional.
2. The act under which the assessment was made is constitutional. Straw & Ellsworth Mnfg. Co. v. L.D. Kilbourne B. & S. Co., 80 Minn. 125, followed.
Statute of Limitations.
3. The filing of complaints in this action by creditors exhibiting their claims against the corporation tolled the statute of limitations, both as to it and its stockholders.
Promissory Notes -- Evidence.
4. It was not necessary for such creditors to make preliminary proof of the execution of certain promissory notes and endorsements, and guaranties thereon, offered in evidence by them.
Orders of Court.
5. The trial court did not err in making either the order allowing claims or the order levying the assessment.
Harris Richardson, Henry C. James and Stevens, O'Brien, Cole & Alberecht, for appellants.
Ambrose Tighe and Stiles W. Burr, for respondent.
On July 30, 1895, the plaintiff, a creditor, began this action against the defendant St. Paul Park Improvement Company, a corporation, for the sequestration of its property and the appointment of a receiver. The allegations of the complaint show that the action was brought under the provisions of G.S. 1894, c. 76, although it was not so expressly alleged. Such proceedings were thereafter had in the action that judgment was duly entered on September 16, 1895, sequestering the property of the defendant, and appointing Charles W. Farnham as receiver. On February 1, 1896, the court made an order requiring creditors of the defendant to exhibit their claims and become parties to the action within six months after the date of the first publication of the order. The order further provided that the receiver, any creditor, or any stockholder, might, within thirty days after the expiration of the six-months limitation, file objections to the allowance of any claim so exhibited. Pursuant to this order, the plaintiff and the other creditors exhibited and filed with the court their claims against the defendant. No objections were filed by any one to the allowance of any of the claims so filed. Afterwards, and on September 1, 1900, the court, on petition of plaintiff, made its order designating a time and place for a hearing on such claims.
Meanwhile on December 6, 1899, the receiver presented to the court a petition praying for an assessment of the stockholders on account of their liability for the debts of defendant, pursuant to Laws 1899, c. 272. Thereupon the court made its order fixing a time and place of hearing on such petition, notice of which was duly given. The hearing upon such claims presented by creditors against the corporation, and the hearing upon the receiver's petition for an assessment of stockholders, were heard by the court at the same time. After hearing the evidence of the respective parties as to each of such matters, the court, on December 15, 1900, made its order determining the amount due upon the claims of the respective creditors, and allowing the same. It also, on the same day, made its order levying an assessment upon the stockholders of the defendant corporation of sixty per cent. of the par value of the stock held by them, respectively. Certain of the stockholders appealed from the order allowing and adjudicating the claims of creditors against the defendant corporation, and also from the order levying an assessment upon the stockholders. The appeals were argued and submitted together.
1. The respondent moves the court to dismiss both appeals, for the reason that each is taken from a nonappealable order. As to the appeal from the allowance of the creditors' claims, it is urged that the appeal is simply from the trial court's findings of fact and conclusions of law. While the action of the court was in the form stated, yet the court did adjudge, determine, and allow the claims of the creditors against the corporation. It was, in effect, a judgment allowing the claims of creditors against the corporation, and therefore appealable. The order assessing the stockholders was a final one, affecting a substantial right, made in a special proceeding. It was appealable. While many of the facts in this case, and the evidence tending to establish them, are relevant to both appeals, yet the orders appealed from are not interdependent, and separate consideration of them will best tend to a clear and correct understanding of the merits of each.
2. The appellants assign ninety-six errors, some of which are so obviously without merit that it is unnecessary specially to refer to them. The first objection to the order allowing the claims meriting consideration is to the effect that the dismissal by stipulation, without prejudice, of the supplemental complaint, by one of the creditors of the corporation, impleading the stockholders, and the proceedings thereunder making them parties to the action, operated as a dismissal also of the claims of creditors theretofore filed against the corporation. Intervening complaints of creditors exhibiting their claims against the corporation were filed before such supplemental complaint, and they were in no manner connected with, or dependent upon, the latter; therefore neither the filing of the supplemental complaint nor its dismissal affected the status of the claims theretofore exhibited in this action against the corporation. It is urged that a large number of claims allowed were barred by the statute of limitations. None of the claims were barred as to the corporation when the creditors' intervening complaints, exhibiting their respective claims, were filed. The filing of such complaints had the same effect, as to the tolling of the statute, as the commencement of an original action by the creditors against the corporation would have had. It follows that the statute had not run as to any claim at the time the court made its order allowing claims, or as to proceedings to enforce the liability of stockholders for the payment of such claims.
Another assignment of error is this:
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