Schram v. Smith
| Decision Date | 27 June 1938 |
| Docket Number | No. 8530.,8530. |
| Citation | 97 F.2d 662 |
| Parties | SCHRAM v. SMITH et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John H. Rapp, of Tucson, Ariz. (Robert S. Marx, of Cincinnati, Ohio, of counsel), for appellant.
Charles Woolf and G. W. Shute, both of Phœnix, Ariz., for appellees.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
This is a companion case to Schram v. Poole, 9 Cir., 97 P.2d 665, June 16, 1938. A motion to dismiss a bill, filed by appellant as receiver of the First National Bank-Detroit, a national banking association, to recover liability of shareholders, having been sustained, the receiver appeals.
The history of the bank and its insolvency is set forth in Schram v. Poole, 9 Cir., supra, and need not be repeated here. The bill alleges that the stock of the above-named bank was held by Detroit Bankers' Company, a Michigan corporation, hereinafter called the holding company; and that the holding company's articles of association in Article IX-A provided:
"The holder of each share of common stock of this corporation shall be individually and severally liable for such stockholder's ratable and proportionate part (determined on the basis of their respective stockholdings of the total issued and outstanding stock of this corporation) for any statutory liability imposed upon this corporation by reason of its ownership of shares of the capital stock of any bank or trust company, and the stockholders of this company, by the acceptance of their certificates of stock of this company, severally agree that such liability may be enforced in the same manner and to the same extent as statutory liability may now or hereafter be enforceable against stockholders of banks or trust companies under the laws under which said banks or trust companies are organized to operate. * * *" It is also alleged that the substance of such article was contained on the face of the stock certificates, and on the back thereof the same was printed in full.
It further appears from the bill that the stockholders of the holding company, by accepting the certificates, representing stock in the holding company, "entered into a contract whereby they severally agreed to pay their ratable and proportionate part of any assessment levied by the Comptroller of the Currency upon the shareholders of record of the capital stock of said First National Bank-Detroit; that there was a good and valid consideration therefor, and all of the parties necessary to the making of said contract imposing said liability upon the stockholders of the Detroit Bankers Company, and in favor of and for the benefit of the creditors of First National Bank-Detroit were parties to said contract."
It is further alleged that the Comptroller of the Currency on May 16, 1933, levied a 100% assessment on the bank's stockholders, due on June 23, 1933, which date was extended several times, so that the liability was finally due on July 31, 1933. There were further allegations sufficient to impose liability directly on appellees by considering them the "actual" owners of bank stock. It was also alleged that appellee Smith owned 700 shares of stock in the holding company, and was liable for $9,839.04; that appellee Sands owned 200 shares of stock, and was liable for $2,811.16. Finally, it was alleged that "Notwithstanding their liability and duty to pay said assessments * * * said appellees * * * have failed and refused and continue to refuse to do so."
The bill herein was filed on May 12, 1936. Appellee filed a motion to dismiss, which as supplemented was based on three grounds, one of which was that the cause was barred by the Arizona statute of limitations. The court below so held and dismissed the bill. The receiver has appealed.
Insofar as the bill alleged liability by considering appellees as the actual owners of the bank's stock, we think the trial court correctly held that the cause was barred by Rev.Code of Arizona 1928, § 2058(3), which limits the bringing of such causes of action to one year. Donald v. Bird, 9 Cir., 85 F.2d 663. However, there is yet to be...
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