Parker v. Luehrmann, No. 28731.

CourtSupreme Court of Nebraska
Writing for the CourtCHAPPELL
Citation252 N.W. 402,126 Neb. 1
PartiesPARKER v. LUEHRMANN ET AL.
Decision Date26 January 1934
Docket NumberNo. 28731.

126 Neb. 1
252 N.W. 402

PARKER
v.
LUEHRMANN ET AL.

No. 28731.

Supreme Court of Nebraska.

Jan. 26, 1934.



Syllabus by the Court.

1. A contingent claim against an estate mentioned in section 30-701, Comp. St. 1929,

[252 N.W. 403]

is one where the liability depends upon some future event which may or may not happen, and which, therefore, makes it wholly uncertain whether there ever will be a liability. In the case of a contingent claim, the contingency does not relate simply to the amount which may be recovered, but to the uncertainty whether any amount will ever become due. In re Estate of Bolton, 121 Neb. 737, 238 N. W. 358.

2. When the receiver of an insolvent bank, duly appointed by the district court, lodges a contingent claim for double stock liability against the estate of a deceased stockholder, the filing of such claim does not vest the county court with exclusive jurisdiction over it, and deprive the receiver of the right to proceed in the district court to determine the liability of the estate of such deceased stockholder, and make the claim absolute for allowance in the county court. The administrator is a proper party defendant for that purpose. Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55.

3. “The trust of an administrator or executor is a continuing one, and a decree of final accounting does not destroy the relationship of such officer but only discharges him from liability for the past.” Hazlett v. Estate of Blakely, 70 Neb. 613, 97 N. W. 808;Brownell v. Adams, 121 Neb. 304, 236 N. W. 750.

4. Sections 4 and 7, art. 12 of the Constitution, must be construed together. They are self-operating and self-executing. Before the enforcement of individual liability of stockholders can be had by the receiver under direction of the receivership court, it must be first judicially ascertained that the assets of the bank have been exhausted, and the amount of deficiency or indebtedness remaining to be enforced against them. Such judicial determination does not fix the liability of such stockholders, but is only a necessary step to be taken by the receivership court before an action can be brought by the receiver to judicially determine the same. Rogers v. Selleck, 117 Neb. 569, 221 N. W. 702.

5. “Jurisdiction of equity to enforce constitutional liability of stockholders of an insolvent banking corporation is based upon the rule obtaining in this state that equity has jurisdiction of an action by a receiver against all the stockholders of a corporation jointly to enforce their contractual or statutory liability.” Brownell v. Adams, 121 Neb. 304, 236 N. W. 750.

6. The appointment of a receiver and judicial determination of deficiency of assets by the receivership court does not vest that court with exclusive jurisdiction to try an equity suit for the purpose of determining the liability of stockholders. After authority is given by the receivership court to enforce the liability of stockholders, if none of the stockholders resides in the county where the receivership court acts, or service cannot legally be had upon one or more of them in that county, such suit may be brought by the receiver against all the stockholders in the district court of any county in this state where lawful service of summons can be had upon one or more of them.

7. An action against heirs to recover real or personal estate which has been received by them as distributees of an estate and which is liable for any debts under provisions of the statute with reference to contingent claims (Comp. St. 1929, c. 30, art. 7), is not an original action but a special proceeding for the enforcement and collection of a claim allowed or established in the county court. Horst v. McCormick Harvester Mach. Co., 30 Neb. 558, 46 N. W. 717.


Appeal from District Court, Cuming County; Chase, Judge.

Suit by George I. Parker, receiver of the Farmers' State Bank, Altona, Neb., against Louis W. Luehrmann, administrator of the estate of Herman Luehrmann, deceased, and others. From an adverse judgment, defendants appeal.

Affirmed in part and reversed in part and cause remanded, with directions.

A. R. Oleson, of Wisner, for appellants.

Fred S. Berry, of Wayne, and F. C. Radke and Barlow Nye, both of Lincoln, for appellee.


Heard before GOOD, EBERLY, and DAY, JJ., and CHAPPELL and LANDIS, District Judges.

CHAPPELL, District Judge.

This is a suit in equity brought by the receiver of the Farmers' State Bank of Altona, Nebraska, in the district court for Cuming county, Nebraska, for the benefit of the unpaid creditors of the bank, to recover from appellants and other stockholders the constitutional liability imposed upon them. The only appellants are Louis W. Luehrmann, administrator of the estate of Herman Luehrmann, deceased, Louis W. Luehrmann, Louise Kohlmoos and Emma Luehrmann, his heirs at law.

There is no dispute in the evidence. The questions are those of law applicable to admitted facts, which are that Herman Luehrmann departed this life intestate February 6, 1928. His estate was duly administered in Cuming county, Nebraska, and final decree entered therein December 5, 1928, assigning the real estate and personal property to the above heirs. The personal property was distributed to them and individual vouchers or releases describing the personal property received

[252 N.W. 404]

by each were given, and the administrator was discharged on December 24, 1928. The value of the property received by the heirs at law from the estate exceeds in value the amount of the stockholders' liability sued for in this action. The appellants, however, refused to accept the ten shares of bank stock which was listed in the inventory of the administrator. Five shares of this stock were issued to deceased as stock dividends but never delivered to him. However, dividends thereon were allowed and received by the deceased during his lifetime, the bank retaining the stock certificates in its possession. This stock was never transferred. All indebtedness of the bank was created and accrued while Herman Luehrmann, deceased, was the owner and holder of such stock.

On January 18, 1929, the bank was closed, and a receiver was appointed by the district court for Wayne county, Nebraska, wherein the bank was located. On June 15, 1929, after the assets were liquidated and exhausted, a decree of deficiency for more than the capital stock of the bank was entered by the receivership court. This decree provided that all such unpaid indebtedness was created and accrued while Herman Luehrmann, deceased, among others, was the owner and holder of ten shares of the capital stock of the bank of the par value of $100, and that an assessment against the capital stock of the bank and the respective owners and holders thereof was necessary, and that each was respectively liable for an amount equal to the par value of the capital stock of the bank owned by them, and George I. Parker, as receiver of the bank, was thereby authorized and empowered to proceed to collect and to enforce all unpaid stockholders' liability and to bring and maintain such action or actions in court as, in his judgment, were proper and advisable to enforce payment of such liability.

On June 12, 1930, a contingent claim was filed against the estate of Herman Luehrmann, deceased, in the county court of Cuming county, Nebraska, setting forth, in effect, that this action had been filed, but not yet tried or determined, and that the claim against the estate of Herman Luehrmann, deceased, had not yet been determined and was not absolute.

The decree of the district court, in so far as it is of importance here, provides: “Wherefore, it is ordered, considered, adjudged and decreed that the plaintiff have and recover from the estate of Herman Luehrmann, deceased, the sum of $1,000 with interest thereon at 7 per cent. per annum from February 5, 1928, the date of the commencement of this action, and that the same be and...

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11 practice notes
  • State ex rel. Spillman v. Commercial State Bank of Omaha, No. 31537.
    • United States
    • Supreme Court of Nebraska
    • June 11, 1943
    ...State Bank, 118 Neb. 337, 224 N.W. 868;State v. Thurston State Bank, 125 Neb. 120, 249 N.W. 90; [10 N.W.2d 272]Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402;Luikart v. Higgins, 130 Neb. 395, 264 N.W. 903. See, also, 9 C.J.S., Banks and Banking, p. 153, § 78. The trust fund not being an asse......
  • Rehn v. Bingaman, No. 32592.
    • United States
    • Supreme Court of Nebraska
    • April 14, 1949
    ...will ever occur, to thereby effect a right of action or liability. In re Estate of Bolton, 121 Neb. 737, 238 N.W. 358;Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402; 21 Am.Jur., Executors and Administrators, s. 356, p. 582; 34 C.J.S., Executors and Administrators, s. 377, p. 122; Dame, Proba......
  • Carlson v. Bartels, No. 31517.
    • United States
    • Supreme Court of Nebraska
    • July 30, 1943
    ...in 1941 specifically provide for such proceedings in the district court. Comp.St.Supp.1941, §§ 43-706, 43-711. See Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402, in which claims on bank stock liability are first allowed in the district court. It is true that generally under the old common l......
  • Land v. Wolken, No. 31996.
    • United States
    • Supreme Court of Nebraska
    • January 11, 1946
    ...only discharges him from liability for the past. Woerner, Am. Law of Administration (2d Ed.), vol. 2, § 571.’ And in Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402, 405, we reaffirmed this holding as follows: ‘The fact that the estate had been administered, final decree entered, and the prop......
  • Request a trial to view additional results
11 cases
  • State ex rel. Spillman v. Commercial State Bank of Omaha, No. 31537.
    • United States
    • Supreme Court of Nebraska
    • June 11, 1943
    ...State Bank, 118 Neb. 337, 224 N.W. 868;State v. Thurston State Bank, 125 Neb. 120, 249 N.W. 90; [10 N.W.2d 272]Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402;Luikart v. Higgins, 130 Neb. 395, 264 N.W. 903. See, also, 9 C.J.S., Banks and Banking, p. 153, § 78. The trust fund not being an asse......
  • Rehn v. Bingaman, No. 32592.
    • United States
    • Supreme Court of Nebraska
    • April 14, 1949
    ...will ever occur, to thereby effect a right of action or liability. In re Estate of Bolton, 121 Neb. 737, 238 N.W. 358;Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402; 21 Am.Jur., Executors and Administrators, s. 356, p. 582; 34 C.J.S., Executors and Administrators, s. 377, p. 122; Dame, Proba......
  • Carlson v. Bartels, No. 31517.
    • United States
    • Supreme Court of Nebraska
    • July 30, 1943
    ...in 1941 specifically provide for such proceedings in the district court. Comp.St.Supp.1941, §§ 43-706, 43-711. See Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402, in which claims on bank stock liability are first allowed in the district court. It is true that generally under the old common l......
  • Land v. Wolken, No. 31996.
    • United States
    • Supreme Court of Nebraska
    • January 11, 1946
    ...only discharges him from liability for the past. Woerner, Am. Law of Administration (2d Ed.), vol. 2, § 571.’ And in Parker v. Luehrmann, 126 Neb. 1, 252 N.W. 402, 405, we reaffirmed this holding as follows: ‘The fact that the estate had been administered, final decree entered, and the prop......
  • Request a trial to view additional results

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