Peterson v. Strayer
| Decision Date | 17 July 1931 |
| Docket Number | 27689 |
| Citation | 237 N.W. 667,121 Neb. 587 |
| Parties | VAN E. PETERSON, RECEIVER, APPELLEE, v. FRANK P. STRAYER ET AL., APPELLANTS. [*] |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hitchcock county: CHARLES E ELDRED, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Where certain bank stock was sold by the owners thereof, at a time when the bank was under the direction of the department of trade and commerce, such original stockholders are primarily liable for the constitutional double liability under section 7, art. 12 of the Constitution, provided the liability accrued while they remained such stockholders.
Where certain stock in a bank, then under the direction of the department of trade and commerce, was sold by the owners thereof, the purchasers become stockholders and are bound by the constitutional double liability for such liability as may accrue while they are such stockholders.
" A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party." 21 C. J. 1223.
Appeal from District Court, Hitchcock County; Eldred, Judge.
Action by Van E. Peterson, as receiver of the Citizens' State Bank of Stratton, Neb., against Frank P. Strayer and others impleaded with Ralph E. Strayer, Joe Sabatka, and others. From the judgment, defendant first named and certain others appeal, and defendant Joe Sabatka and certain others cross-appeal.
Affirmed.
Norval Brothers and Scott & Scott, for appellants.
Butler & James, H. P. Armitage, C. D. Ritchie and Cordeal, Colfer & Russell, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This action was begun in the district court for Hitchcock county by the receiver of the Citizens State Bank of Stratton to enforce the double liability of certain stockholders therein.
On or about April 18, 1924, the directors of the bank adopted a resolution declaring an assessment of 100 per cent. on its capital stock. The defendants Frank P. Strayer, E. H. Strayer, Ralph E. Strayer, and J. M. Sutton refused to pay such assessment on the stock respectively owned by them. On or about July 12, 1924, the stock of such defendants was sold to the following parties, who are also made defendants herein, namely: The stock of E. H. Strayer was sold to J. C. Story, who afterwards transferred 20 shares of his stock to the defendant H. P. Armitage; that of Frank P. Strayer was sold to Will C. Dahnke; that of Ralph E. Strayer was sold to Charles W. Wood; and the stock of J. M. Sutton was sold to E. M. Ernest. The original owners of the stock may be hereinafter referred to as the Strayer group, and the purchasers thereof as the Dahnke group. All of the defendants above named have been made parties hereto by the receiver. The trial court found that the Strayer group are primarily liable to the receiver, and that the Dahnke group are secondarily liable for the respective amounts of stock involved in each case, with interest thereon at 7 per cent. The defendants have appealed.
In a former action entitled, Citizens' State Bank v. Strayer, 114 Neb. 567, 208 N.W. 662, arising out of an assessment of 100 per cent. against the capital stock of the bank in suit, we held that the bank could not recover a deficiency of the assessment because such assessment was not authorized by a majority of the stockholders.
In the case now before us the Dahnke group contend that, because this court held that the assessment above mentioned was void, it follows that all proceedings based thereon are also void, and that the group last above named are not stockholders in the bank, and hence are not liable for any of the stock. The Strayer group, however, contend that the sale of the stock to the Dahnke group was valid, and that they, the Strayer group, are no longer stockholders of the bank and are not liable to respond in any event for the obligations and liabilities that arise as against stockholders.
It may be noted here that, in the former action, the Strayer group, then owners of the stock, contended that the assessment was invalid. The same group of defendants now contend, however, that the sale of their stock under the assessment was valid and that they are no longer the owners thereof.
In 21 C. J. 1223, this is said: "A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party." And in United States Fidelity & Guaranty Co. v. Ettenheimer, 70 Neb. 144, 97 N.W. 227, we held that, when a party to an action successfully assailed the proceedings in this court as being unauthorized by law and wholly void, he in turn subjected himself to an estoppel afterwards to assert that they were in any respect valid.
The report of the receiver discloses that, with the exception of cash on hand in the sum of $ 12,322.32, all the assets of the bank have been exhausted, and that the present liabilities amount to $ 83,302.19, which the receiver was unable to liquidate. And it is further disclosed by the...
To continue reading
Request your trial