McCall v. Bowen, No. 16,922.

CourtSupreme Court of Nebraska
Writing for the CourtLETTON
Citation135 N.W. 1014,91 Neb. 241
PartiesMCCALL v. BOWEN ET AL.
Decision Date20 April 1912
Docket NumberNo. 16,922.

91 Neb. 241
135 N.W. 1014

MCCALL
v.
BOWEN ET AL.

No. 16,922.

Supreme Court of Nebraska.

April 20, 1912.


[135 N.W. 1014]


Syllabus by the Court.

An action by the receiver of a mutual insurance company, organized under chapter 46,

[135 N.W. 1015]

Laws 1899, against the members to recover an assessment made by the court in order to pay the liabilities of the insolvent corporation, may properly be brought in a court of equity in the same manner as an action by the receiver of a stock corporation against its stockholders for a like purpose, and in such case summons may be issued out of the county in which the action is brought to any other county in the state in which a defendant resides or may be summoned.

Where the directors of such a corporation, before it was declared insolvent, levied certain assessments which were invalid because not made in accordance with law, and which were afterwards set aside by the district court in the proceedings to wind up the affairs of such corporation, the cause of action against members for assessments made by the receiver under the direction of the court was not barred, although the invalid assessments were made more than four years before the latter.


Appeal from District Court, Lancaster County; Cornish, Judge.

Action by E. D. McCall, as receiver of the Hog Raisers' Mutual Insurance Company of Lincoln, Neb., against Richard Bowen and others impleaded with others. Judgment for plaintiff, and defendant George W. Martin and others appeal. Affirmed.

E. P. Holmes, Geo. L. De Lacy, Tibbets & Anderson, J. C. McNerny, F. A. Berry, F. D. Hunker, W. L. Kirkpatrick, J. W. Purinton, and E. R. Hitchcock, for appellants.

E. J. Clements, for appellee.


LETTON, J.

The Hog Raisers' Mutual Insurance Company of Lincoln, Neb., was organized in April, 1899, under chapter 46, Laws 1899. It did business from its organization until June, 1900, during which time it issued about 560 policies. Losses were sustained which were adjusted, audited, and allowed by the company. On the 6th day of June, 1900, there was more than $6,000 due and unpaid on the same. Judgment was recovered by a policy holder on an unpaid loss, and an execution issued thereon, which was returned wholly unsatisfied. Afterwards, the creditor began an action in the district court of Lancaster county alleging the insolvency of the company, the issuance and return of the execution, that the officers of the company have failed and neglected to enforce the statutory liability of the members, or to collect from them the necessary funds to pay the judgment and the other unpaid losses, and praying for the appointment of a receiver.

Pursuant to this application, the plaintiff was appointed receiver, and was authorized to make any and all assessments necessary to pay all valid obligations existing against the company including the costs and expenses of the receivership, and to collect the assessments by suit or otherwise. In the receivership proceedings claims to the amount of $8,721 were presented, heard by the court, and allowed. Afterwards, the receiver in pursuance of an order of the court made an assessment upon each of the members for his proportionate share of the amount necessary to defray the losses and expenses. This assessment was approved, adopted, and confirmed by the court, and the receiver was ordered and directed to collect the same. A number of members paid the assessment but a large number refused to pay. This suit is brought to recover this assessment.

The petition herein alleges that the assessments as made would be sufficient to meet all claims and assessments, but that certain of the defendants have removed from the state, and others are insolvent, and that it is necessary that a court of equity take into account the losses that will necessarily result from these facts, and that, upon rendition of judgment for the full amount of the assessment, the court should determine whether execution should issue for the full liability or whether in the first instance an execution for a part only will be adequate for the collection of the necessary amount. It is further alleged that this action is ancillary to the suit brought to wind up the affairs of the company, that separate and independent suits against each of the members would require a multiplicity of suits and excessive and unnecessary expenses, and that the plaintiff is without an adequate remedy at law. The prayer is that a several judgment be entered against each of the defendants, that the court ascertain the amount for which execution shall issue in the first instance against each defendant, and for such other relief as may be equitable. A large number of the defendants live and were served in Lancaster county,...

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9 practice notes
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...all other creditors against all the stockholders of the corporation. Emanuel v. Barnard, 71 Neb. 756, 99 N. W. 666. In McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781, the court announced this rule as applicable to a suit brought by the receiver of a mutual insurance c......
  • Dempster v. Ashton, 28589
    • United States
    • Supreme Court of Nebraska
    • November 16, 1933
    ...55 Neb. 93, 75 N.W. 49; Pickering v. Hastings, 56 Neb. 201, 76 N.W. 587; Emanuel v. Barnard, 71 Neb. 756, 99 N.W. 666; McCall v. Bowen, 91 Neb. 241, 135 N.W. 1014; Rogers v. Selleck, 117 Neb. 569, 221 N.W. 702; Brownell v. Adams, 121 Neb. 304; Fremont Package Mfg. Co. v. Storey, 2 Neb. (Uno......
  • Bacher v. District Court, In and For Gunnison County, No. 26530
    • United States
    • Colorado Supreme Court of Colorado
    • October 7, 1974
    ...878; Cooley v. Ensign-Bickford Co., Iowa, 209 N.W.2d 100; White v. Harbeson, 169 Ky. 224, 183 S.W. 475, L.R.A.1916D 1129; McCall v. Bowen, 91 Neb. 241, 135 N.W. 1014, 40 L.R.A.,N.S., 781; Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 139 A.L.R. 1474. See also 92 C.J.S. Venue § 61; 56 Am.J......
  • DeMpster v. Ashton, No. 28589.
    • United States
    • Supreme Court of Nebraska
    • November 16, 1933
    ...55 Neb. 93, 75 N. W. 49;Pickering v. Hastings, 56 Neb. 201, 76 N. W. 587;Emanuel v. Barnard, 71 Neb. 756, 99 N. W. 666;McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781;Rogers v. Selleck, 117 Neb. 569, 221 N. W. 702;Brownell v. Adams, 121 Neb. 304, 236 N. W. 750;Fremont ......
  • Request a trial to view additional results
9 cases
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...all other creditors against all the stockholders of the corporation. Emanuel v. Barnard, 71 Neb. 756, 99 N. W. 666. In McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781, the court announced this rule as applicable to a suit brought by the receiver of a mutual insurance c......
  • Dempster v. Ashton, 28589
    • United States
    • Supreme Court of Nebraska
    • November 16, 1933
    ...55 Neb. 93, 75 N.W. 49; Pickering v. Hastings, 56 Neb. 201, 76 N.W. 587; Emanuel v. Barnard, 71 Neb. 756, 99 N.W. 666; McCall v. Bowen, 91 Neb. 241, 135 N.W. 1014; Rogers v. Selleck, 117 Neb. 569, 221 N.W. 702; Brownell v. Adams, 121 Neb. 304; Fremont Package Mfg. Co. v. Storey, 2 Neb. (Uno......
  • Bacher v. District Court, In and For Gunnison County, No. 26530
    • United States
    • Colorado Supreme Court of Colorado
    • October 7, 1974
    ...878; Cooley v. Ensign-Bickford Co., Iowa, 209 N.W.2d 100; White v. Harbeson, 169 Ky. 224, 183 S.W. 475, L.R.A.1916D 1129; McCall v. Bowen, 91 Neb. 241, 135 N.W. 1014, 40 L.R.A.,N.S., 781; Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 139 A.L.R. 1474. See also 92 C.J.S. Venue § 61; 56 Am.J......
  • DeMpster v. Ashton, No. 28589.
    • United States
    • Supreme Court of Nebraska
    • November 16, 1933
    ...55 Neb. 93, 75 N. W. 49;Pickering v. Hastings, 56 Neb. 201, 76 N. W. 587;Emanuel v. Barnard, 71 Neb. 756, 99 N. W. 666;McCall v. Bowen, 91 Neb. 241, 135 N. W. 1014, 40 L. R. A. (N. S.) 781;Rogers v. Selleck, 117 Neb. 569, 221 N. W. 702;Brownell v. Adams, 121 Neb. 304, 236 N. W. 750;Fremont ......
  • Request a trial to view additional results

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