Miller v. Amoretti
| Decision Date | 03 June 1919 |
| Docket Number | 900 |
| Citation | 26 Wyo. 170,181 P. 420 |
| Parties | MILLER v. AMORETTI |
| Court | Wyoming Supreme Court |
ERROR to District Court, Fremont County; HON. CHARLES E. WINTER Judge.
Action by H. B. Miller as receiver of the Farmers State Bank of Bridger, Montana, a corporation, against Eugene Amoretti, Jr. Defendant demurred to the petition as amended, which was sustained, and thereupon the plaintiff excepted to the ruling and refusing to further plead, judgment was rendered and entered in favor of defendant. Plaintiff brings error.
Affirmed.
E. H Fourt, for plaintiff in error.
The Montana court adjudged insolvency and directed the receiver to proceed and collect from stockholders an amount equal to the par value of their stock; this is a final judgment of the Montana Court entitled to full faith and credit under the Federal Constitution; the liability of stockholders to creditors of the bank to the extent of the par value of their stock is fixed by the Montana Statute and is therefore a part of the contract under which the shares are taken. The Montana law also provides for the appointment of a receiver. This case is to be distinguished from McLaughlin v O'Neil, 7 Wyo. 187, 51 P. 243, since in that case, the Utah court had not judicially found the amount of the deficiency. In the present case the Montana court has determined the liability. Nichols v. Board, 76 P. 681, sustains the point. There is no other proceeding provided by the laws of Montana, which could conflict or supersede the power and authority of the receiver in the present case. (See also Childs v. Blethen (Wash.), 82 P. 405; Finney v. Guy, 49 L. R. A. 486; State v. Union Stock Yards Bank, 70 N.W. 752.) The assessment of stockholders of an insolvent bank is a secondary remedy. A receiver takes possession of all property for the benefit of creditors and should be impowered to enforce every liability necessary to protect the rights of creditors. (Wilson v. Book, 43 P. 939.) Creditors cannot be permitted to supersede receivers in the exercise of this right without first showing good cause and obtaining leave of court in which the insolvency proceedings are pending. (Anderson v. Seymour, 73 N.W. 171; Bank v. Anderson, 73 N.W. 174; Miller v. Lane, 116 P. 58.) The Montana statute provides that stockholders shall be liable for all of the contracts, debts and engagements of the corporation and differs somewhat from double liability statutes in other states. It should, therefore, be left to the State of Montana to provide for the necessary arrangements and conditions under which the creditors may obtain money due them. In the following cases involving similar statutes the right of receivers to maintain actions against stockholders in foreign states has been maintained: Howarth v. Elwanger, 86 F. 54; McTammany v. Day, 128 P. 563; Waterson v. Materson, 46 P. 1041. In Iowa the statute provides that the stockholders are liable to creditors and in a suit brought in the State of Washington on the Iowa statute, it was held that the receiver of the bank was not a proper party to bring the suit; the distinction in the language of the Montana statute would appear to sustain the authority of a receiver of insolvent bank to maintain an action against stockholders in foreign states.
John Dillon and Ralph Kimball, for defendant in error.
It is not alleged that the corporation was organized under the statute creating a double liability of stockholders; this is necessary. (1 Cook Corps., Secs. 212-214.) The double liability of stockholders is for the benefit of the creditors only. It is not an asset of the corporation and a general receiver of the corporation has no right to enforce its payment in the absence of a statute giving him such authority. Even a receiver appointed especially for the creditors has been held to have no authority to enforce such liability. (McLaughlin v. Kimball, 58 P. 685.) A general receiver is without authority to enforce the liability. (McLaughlin v. O'Neil, 7 Wyo. 187.) There is but one case authorizing a receiver to maintain such an action. (Wilson v. Book (Wash.), 43 P. 939.) The Minnesota cases are based on a special statute authorizing a receiver to maintain actions of this character. Finney v. Guy and Stone v. Bank cited by plaintiff in error are not in point, nor is the Idaho case of McTammany v. Day. A recovery by the receiver will not discharge the liability existing in favor of creditors only.
POTTER, JUSTICE. BEARD, C. J. concurs. BLYDENBURGH, J., being ill, did not participate in the decision.
This is an action brought by the receiver of the Farmers State Bank of Bridger, Montana, to recover of the defendant as a stockholder of the bank an amount equal to the amount of his stock, alleged to be due under a statute imposing a liability to that extent, in addition to the amount invested in the stock, upon the stockholders of a banking corporation, severally and individually, for all contracts, debts and engagements of the corporation. Demurrers to the original and an amended petition having been sustained, a second amended petition was filed to which also a demurrer was filed and sustained, and thereupon, the plaintiff excepting to the ruling, and refusing to further plead, judgment was rendered and entered in favor of the defendant. The plaintiff brings the case here on error, assigning as error the order sustaining the demurrer to the second amended petition, and the rendering of judgment against the plaintiff.
The second amended petition alleges: That the Farmers State Bank of Bridger is, and at all the times mentioned in said petition was, a corporation duly organized under the laws of the State of Montana. That its principal place of business is at Bridger, in Carbon County, Montana. That on the 8th day of May, 1915, the said bank was insolvent and unable to pay its indebtedness, and its business had been suspended by order of the superintendent of banks of said state. That by an order of that date of the district court of the thirteenth judicial district of said state, in and for the county of Carbon, the plaintiff was appointed receiver of said bank, "to take charge of its property and assets, collect all indebtedness due it, and generally to manage its business and affairs subject to the direction and approval of said court"; and that at all times since said date the said plaintiff has been, and is, the duly appointed, qualified and acting receiver of said bank. That it is necessary to collect from each stockholder of the bank to apply on its indebtedness the full amount of money for which he is liable as such stockholder, to-wit: A sum equal to the par value of the capital stock owned and held by him in addition to the purchase price thereof. That a sum equal to the total amount of the capital stock of the bank, to-wit: The sum of thirty thousand dollars, if paid in full by the stockholders, together with all the property and assets of the bank, will be wholly insufficient to pay its indebtedness. That on the 10th day of June, 1915, the said court, by an order duly made and entered, authorized and directed the plaintiff, for the purpose aforesaid, to assess each stockholder in an amount equal to the par value of his stock, to demand payment thereof, and to take any action necessary to enforce collection of the same, said order in that respect reading as follows:
"H. B. Miller, receiver of the above named Farmers State Bank of Bridger, is hereby expressly authorized and directed to forthwith assess and demand from each of the above named stockholders of said bank the payment of an amount equal to the par value of the capital stock owned and held by him, and to be applied upon the indebtedness of said bank, and said receiver is hereby further authorized and empowered to bring such actions or take such other steps as he may find necessary to enforce the collection and payment of such assessments."
That the defendant at all the times mentioned in the petition has been, and is, the owner of twenty-five shares of the capital stock of said bank of the par value of one hundred dollars each, and is liable as such stockholder for the sum of twenty-five hundred dollars of the indebtedness of said bank; such liability arising under and by virtue of the provisions of section 4012 of the Revised Codes of the State of Montana, being a portion of the chapter of the Civil Code of that state entitled "Regulations of Banking Corporations", which said section reads as follows:
"The stockholders of every corporation formed under this chapter, or which may avail itself of its provisions, shall be severally and individually liable, equally and ratably, and not one for the other, for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares."
That the district courts of the State of Montana are courts of original jurisdiction in all cases at law and in equity. That the statutes of Montana provide for the appointment of a receiver in cases where a bank fails or becomes insolvent. That it is provided by Section 50 of Chapter 9 of the laws of that state of 1889 as follows:
"Whenever the reserve of any bank shall fall below the amount required herein to be kept (fifteen per cent of deposit liabilities) such bank shall not increase its loans or discounts, otherwise than by discounting or purchasing bills of exchange payable at sight or on demand and the superintendent of banks shall notify any bank whose reserve may be below the amount...
To continue reading
Request your trial
-
Vincent v. Reeves
... ... bring an action for that purpose or making the liability an ... asset of the corporation. See Miller v. Amoretti, 26 ... Wyo. 170, 181 P. 420. The reason for these changes disappears ... if the liability is limited as plaintiff contends. We cannot ... ...
-
Corwin v. Settergren
...since the decisions of this court above referred to and considered by the Supreme Court of Wyoming in the case of Miller v. Amoretti, 26 Wyo. 170, 181 Pac. 420, the Legislature has clothed such receivers with greater powers, as will be noted from reading the act of 1923 above alluded to. Th......
-
Corwin v. Settergren
...However, since the decisions of this court above referred to and considered by the Supreme Court of Wyoming in the case of Miller v. Amoretti, 26 Wyo. 170, 181 P. 420, Legislature has clothed such receivers with greater powers, as will be noted from reading the act of 1923 above alluded to.......