Miller v. Connor

• Decision Date: 04 November 1913
• Citation: 160 S.W. 582,177 Mo. App. 630
• Parties: MILLER et al. v. CONNOR.
• Court: Missouri Court of Appeals

160 S.W. 582

177 Mo. App. 630

MILLER et al. v. CONNOR.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. JUDGMENT (§ 217) — "FINAL JUDGMENT" — WHAT CONSTITUTES.

A decree, in an action by the creditors of an insolvent bank, seeking to recover on the stockholders' double liability, which fixed the liability of each shareholder, and appointed persons to collect the amount so ascertained by the prosecutions of suits against the shareholders, is a final decree, although retained on the docket of the court for the purpose of being carried into effect; a recital in the decree that it was also retained for such further proceedings and ascertainments as might be necessary, being mere surplusage, did not affect the finality of the decree, and hence it was admissible in evidence in a suit against a shareholder to recover on his double liability.

2. BANKS AND BANKING (§ 47) — LIABILITY OF SHAREHOLDERS — PROCESS.

A decree ascertaining the double liability of the shareholders of an insolvent bank is, as against one not personally served in the action, prima facie evidence of his liability.

3. LIMITATION OF ACTIONS (§ 2).

In a suit on a cause of action arising in a foreign jurisdiction, the limitation prescribed by the state of the forum will prevail, unless a local statute operates to destroy the cause of action.

4. LIMITATION OF ACTIONS (§ 58) — LIABILITY OF SHAREHOLDERS — ACCRUAL OF RIGHT OF ACTION.

Upon the insolvency of a bank, the rights of action against each shareholder on account of his double liability do not accrue until the amount of the shareholders' liability is ascertained in the insolvency proceedings, and hence limitations do not begin to run until that time.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by Alfred L. Miller and others against Florence E. Connor. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

See, also, 250 Mo. 677, 157 S. W. 81.

Rogers & Sacks, of St. Louis, for appellants. Walter H. Saunders, of St. Louis, for respondent.

NORTONI, J.

This is a suit at law on the statutory liability of a stockholder in an insolvent bank for the pro rata proportion of its indebtedness, ascertained in favor of the creditors of the bank against the shareholders. The court found the issue, and gave judgment for defendant, as if the statute of limitations pleaded in the answer barred the right of recovery, and plaintiffs prosecute the appeal.

It appears from the petition and likewise from the evidence in the record that the State Bank of Monte Vista, Colo., was a corporation organized and doing business under the laws of that state. On June 15, 1899, the bank made an assignment of all of its assets to Norman H. Chapman under the laws of Colorado for the benefit of its creditors. It was incorporated for $80,000, and its 800 shares of stock represented a par value of $100 each. Defendant was and is owner and holder of two shares of the capital stock of the bank, and she is a resident of the city of St. Louis, Mo. It appearing that the assets of the bank were wholly insufficient to meet its liabilities, the three plaintiffs, Alfred L. Miller, Dan Workman, and Phebe C. Smith, together with many other creditors of the bank, on June 9, 1905, instituted a suit in equity against the bank, Norman H. Chapman, its assignee, and all of its stockholders in the district court at Denver, Colo., for an accounting and ascertainment of the pro rata amount due by the respective stockholders under their secondary or statutory liability for the debts of the bank. The district court at Denver possessed jurisdiction in that behalf, and it appears that the bank, Chapman, the assignee, and others were duly served with process. The bank and the assignee both defaulted, however, and John E. Kipp, one of the stockholders therein, appeared, filed his answer, and made defense to the suit. This defendant was a nonresident of Colorado, and not served in the cause for that she resided in the city of St. Louis, and she made no appearance therein.

On May 28, 1907, a hearing was had in the district court at Denver, and a finding and decree were rendered in the equity case, by which the entire indebtedness of the bank then unpaid was ascertained to be $84,318.89, and that the total liabilities of the stockholders of the bank under the Colorado statute was $160,000, that is, double the amount of the stock held by them. The decree sets forth the names of all of the creditors of the bank, and likewise sets forth the names of all of the stockholders, together with the amount of stock owned by each. Having thus found and ascertained the entire indebtedness of the bank, and accounted for all of its assets, and having found and decreed a deficiency of $84,319.89, the court further found and ascertained a liability under the Colorado statute imposing a double liability in such cases of .535 per centum of the stock liability against each and all of the stockholders. By this ascertainment and decree, defendant, owner of two shares of the stock of $100 par value each, was decreed to be indebted to plaintiffs in the amount of $214.

The petition sets forth these facts, and pleads as well the Colorado statute by which the liability is fixed upon such stockholders. That statute is as follows: "Shareholders in banks, savings banks, trust, deposit, and security associations shall be held individually responsible for debts, contracts, and engagements of the said associations, in double the amount of the par value of the stock owned by them respectively." See Laws of Colo. 1885, p. 264. Under this statute, and in accordance with the ascertainment decreed by the district court at Denver, Colo., plaintiffs pray judgment against defendant for her pro rata contribution to the sum of $84,319.89, that is, $214. By the ascertainment decree in equity it appears the court appointed the three plaintiffs to prosecute this and other suits for themselves and all other creditors likewise situated, to the end of enforcing the payment of the amounts ascertained to be due from the stockholders.

By her answer defendant pleaded the Missouri statute of limitations; that is, section 4273, R. S. 1899, the same to be found in our present statute, section 1889, R. S. 1909. This section, together with section 1887, R. S. 1909 (section 4271, R. S. 1899), provides an action upon a liability created by a statute other than a penalty or forfeiture shall be...