Luikart v. Heelan, No. 30468.

• Court: Supreme Court of Nebraska
• Writing for the Court: PAINE
• Citation: 286 N.W. 780,136 Neb. 492
• Parties: LUIKART v. HEELAN ET AL.
• Decision Date: 27 June 1939
• Docket Number: No. 30468.

136 Neb. 492
286 N.W. 780

LUIKART
v.
HEELAN ET AL.

No. 30468.

Supreme Court of Nebraska.

June 27, 1939.

Syllabus by the Court.

1. A stockholder in a corporation enters into a contractual relation which arises out of the following things: His signing the subscription for stock, and the receipt given for the payment thereof; the terms of the stock certificate given him, together with the charter, or articles of incorporation, and by-laws; the effect of all being subject to, and controlled by, the provisions of the Constitution of the state and laws relating thereto which were in force at the time.

2. The repeal of section 7, art. XII of the Constitution, which fixed a double liability upon a stockholder in a state bank for all liabilities accruing while he remains such a stockholder, does not affect his obligation respecting judgments for debts to creditors of said bank which had been entered long prior to said repeal, for such repeal has no retroactive effect.

Appeal from District Court, Douglas County; Rine, Judge.

Action by E. H. Luikart, receiver of the Commercial State Bank of Omaha, Neb. (Florence) against J. J. Heelan, real name unknown, and others, impleaded with F. A. Guggenmos, Fred Armburst and William J. Hotz to require the defendants to pay double liability upon the shares of stock owned by them in the bank, wherein the action was revived and ordered to proceed in the names of Fred J. Armburst and another, executors of the estate of Fred Armburst, deceased. Judgment for the plaintiff and the impleaded defendants appeal.

Judgment affirmed.

Clinton J. Campbell and Hotz & Hotz, all of Omaha, for appellants.

F. C. Radke, of Lincoln, and Young & Williams, of Omaha, for appellee.

[286 N.W. 781]

Heard before ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ., and CHAPPELL, District Judge.

PAINE, Justice.

[1] An equity action was brought by the receiver of the Commercial State Bank, of Florence, Douglas county, against some eleven stockholders of said bank to require them to contribute and pay, by virtue of the Constitution and laws of Nebraska, the double liability upon the shares of stock owned by them in said bank. The district court found for plaintiff, and entered judgment against Fred A. Guggenmos for $300, William J. Hotz, $500, and Fred Armburst, $1,000, each with interest. Motion for new trial was overruled, and supersedeas bonds were duly filed by Fred Armburst and William J. Hotz. Fred Armburst having died, consent was given to revivor, and it is directed that an order of revivor be duly entered. Fred A. Guggenmos having failed to file either a cost bond or supersedeas bond, his appeal is hereby dismissed for such failure.

[2] This action is brought to this court without a bill of exceptions, and therefore only questions of law may be considered. It may be noted that a few pages of a supplemental transcript are attached to the original transcript.

The petition alleges in proper form that the receiver was duly appointed, and took charge of said bank, that all corporate property of said bank was converted into money and applied to the payment of indebtedness, and that there still remained debts and liabilities in the sum of $77,664.66 due to the creditors of said bank; that each stockholder of said bank owes $100 upon each and every share of stock owned in said bank, as all of said indebtedness and liabilities accrued to the creditors of said bank while the defendants were stockholders in said bank, and under the Constitution and laws of Nebraska each stockholder must contribute an amount equal to the shares of stock held by him therein. Plaintiff asked for an accounting to determine the number of shares held by each defendant, and prayed for judgments thereupon to be entered and execution awarded.

[3] To this petition a demurrer was filed on October 20, 1931, charging that the facts stated in the petition did not constitute a cause of action in favor of the plaintiff. The transcript shows no ruling on said demurrer. Said demurrer might have been argued, held under advisement for a long time, and then overruled, for the next filing in...