Proctor v. First Nat. Bank of Viroqua

• Decision Date: 11 October 1927
• Citation: 194 Wis. 20,215 N.W. 438
• Parties: PROCTOR v. FIRST NAT. BANK OF VIROQUA.
• Court: Wisconsin Supreme Court

194 Wis. 20

215 N.W. 438

PROCTOR

v.FIRST NAT. BANK OF VIROQUA.

Supreme Court of Wisconsin.

Oct. 11, 1927.

Appeal from Circuit Court, Vernon County; R. S. Cowie, Judge.

Action by H. P. Proctor against the First National Bank of Viroqua. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded. with directions.--[By Editorial Staff.]

Demurrer. The complaint alleges:

The corporate character of the defendant bank, and that in the month of June, 1916, the plaintiff was the owner of 250 shares of the stock of said banking corporation of the par value of $100 per share. That in the month of June, 1916, the comptroller of the currency caused an examination to be made of the defendant bank, and made an order requiring the defendant bank to remove from its assets certain securities, among which were the bonds of the Seaboard Logging Company and divers other securities, all of the par value of $15,000.

“Fourth. That during the month of June, 1916, pursuant to and in compliance with the order of the said comptroller of the currency, the said defendant did take from its assets the securities so listed and ordered to be taken therefrom by said comptroller of the currency to the amount of $15,000.”

That, in order to make good such impairment of its assets, defendant levied an assessment of 30 per cent. upon the par value of its stock. That plaintiff and all other stockholders paid such assessments; the plaintiff paying the sum of $7,500.

“Seventh. That, by virtue of said payments made by said stockholders in the said banking corporation, defendant herein, the aforesaid securities, the par value of which amounted to the said sum of $15,000, became the property of said stockholders of record on the books of the defendant corporation at the time of such payment, and the same should have been delivered to said stockholders at the time of such payment.

Eighth. That all of said securities so removed from the assets of the defendant banking corporation were retained by said defendant.”

That in January, 1917, the plaintiff sold the 250 shares of which he was the owner. That he is now the owner of ten shares of the capital stock of said bank.

The complaint further alleges:

That plaintiff is informed and believes that the defendant bank has collected and received payment in full on account of the securities listed by the comptroller; the last payment being made on the 15th day of October, 1925.

“Eleventh. That by reason of said recoupments the said defendant banking corporation is now indebted to its said stockholders so paying said assessments, in the amount so recovered by payment of said securities so removed from the assets of the defendant banking corporation, and to this plaintiff in the sum of $7,500, together with interest.”

That demand has been made for an accounting, settlement, and payment, which has been refused.

The defendant demurred upon three grounds: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the action is not begun within the time limited by law; and (3) that there is a defect of parties plaintiff. From the order overruling the demurrer, the defendant appeals.

Graves & Gulbrandsen, of Viroqua, for appellant.

H. P. Proctor, Jr., of Viroqua, for respondent.

ROSENBERRY, J.

In order to determine the question at issue--that is, whether the plaintiff can recover his proportionate share of the recoupments made by the bank on account of the assets set aside in 1916--some of the allegations of the complaint must be first construed.

It is alleged that the defendant did take from its assets the securities listed by the comptroller, and that the assessment of $15,000 was levied “with which to purchase from the banking corporation the...