Murtey v. Allen

• Decision Date: 05 June 1899
• Citation: 45 A. 752,71 Vt. 377
• Court: Vermont Supreme Court
• Parties: MURTEY v. ALLEN.

45 A. 752

71 Vt. 377

MURTEY

v. ALLEN.

Supreme Court of Vermont. Rutland.

June 5, 1899.

Exceptions from Rutland county court; Thompson, Judge.

Action by Thomas Murtey, receiver of the Commercial Bank of Weeping Water, against Simeon Allen. A demurrer to the declaration was sustained, and plaintiff brings exceptions. Affirmed.

The declaration alleged the organization, existence, and operation of the Commercial Bank of Weeping Water, in Nebraska; defendant's ownership of stock therein; the existence of the constitutional provision quoted in the opinion of the court, as of the time when the defendant became a stockholder, and ever since; the existence of a law of Nebraska that a court might order the receiver of a banking corporation, who had filed a certain report, to order such receiver to proceed against the stockholders to enforce their liabilities in favor of creditors, holding whatever surplus funds might remain after paying the debts of the corporation subject to the order of the court, to be made in favor of the parties entitled thereto; the insolvency of said bank, resulting from said liabilities incurred while the defendant was a stockholder; the due appointment and qualification of the plaintiff as receiver, and the order of the court to the plaintiff, as such receiver, to enforce against the stockholders their full additional liability under the laws and constitution referred to, by reason whereof it was alleged that an action had accrued to the plaintiff to demand and have of the defendant the par value of the stock held by him.

Butler & Moloney, for plaintiff.

P. S. Piatt and J. C. Baker, for defendant.

WATSON, J. The plaintiff, as receiver of the Commercial Bank of Weeping Water, in the state of Nebraska, under an appointment by the district court within and for the county of Cass, in the state of Nebraska, in a proceeding in which the state of Nebraska is complainant and the said bank is defendant, has brought his action of debt against the defendant, a resident of this state, and an alleged stockholder in said bank, to enforce an alleged liability existing against him by force of section 7 of article 11 of the constitution of the state of Nebraska, which reads, "Every stockholder in a banking corporation or institution, shall be individually responsible and liable to its creditors over and above the amount of stock by him held, to an amount equal to his respective stock or shares so held for all its liabilities accruing while he remains such stockholder." The first count of the declaration was waived by the plaintiff in the county court, and to the other two counts the defendant interposed a general demurrer, which was sustained by the county court; and, upon exceptions thereto...