Shabata v. Johnston

• Decision Date: 09 December 1897
• Citation: 53 Neb. 12,73 N.W. 278
• Parties: SHABATA ET AL. v. JOHNSTON ET AL.
• Court: Nebraska Supreme Court

53 Neb. 12

73 N.W. 278

SHABATA ET AL.

v.JOHNSTON ET AL.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

1. A defendant who has voluntarily submitted his person to the jurisdiction of a district court cannot afterwards be heard by answer to question such jurisdiction.

2. A finding adverse to the contention that a banking corporation had ceased to exist by lapse of time will be sustained where, on each side, the evidence is of like character, with a preponderance in favor of the finding, rather than against it.

3. A claim on the part of a defendant which he will be entitled to set off against the claim of a plaintiff against him must be one upon which such defendant could, at the date of the commencement of the suit, have maintained an action on his part against the plaintiff.

4. A joint assignment of errors in a petition in error made by two or more persons, which is not good as to all who join therein, must be overruled as to all.

5. Where, upon a sufficient consideration moving to himself, a party had given his promissory note to the cashier of a bank to take up the indebtedness of another person due to said bank, such maker will be held liable to one who subsequently purchases said note even after due; not necessarily because of any right to protection on account of being such purchaser, but because the note could be enforced by the bank for whose benefit it was originally made.

6. In an action by the purchaser of a note sold to him by the receiver of an insolvent bank under an order of court directing such sale, the fact that the entire capital stock of such bank was held by its cashier at the time of the making of such note or thereafter constitutes no defense.

Error to district court, Douglas county; Keysor, Judge.

Actions by John R. Johnston and Frank H. Connor, receiver, against Joseph W. Shabata and Fayette I. Foss, upon a promissory note made by the former and indorsed by the latter defendant. Judgment was rendered in favor of plaintiffs, and defendants bring error. Affirmed.

Ragan, C., dissenting.F. I. Foss, Hastings & McGintie, Hall & McCulloch, and W. R. Matson, for plaintiffs in error.

Chas. Offutt, for defendants in error.

RYAN, C.

In the district court of Douglas county there were commenced two actions, in each of which John R. Johnston and Frank H. Connor, receiver of the State Bank of Nebraska, at Crete, Neb., were plaintiffs. In one of these Joseph W. Shabata and Fayette I. Foss were the defendants, and in the other Mr. Foss was the sole defendant. They were tried to the court upon evidence, a large part of which was applicable to both cases. There was a judgment against Mr. Foss and Mr. Shabata in the sum of $3,014.34 in one case, and against Mr. Foss in the other case in the sum of $11,638.89. To review these judgments, separate petitions in error have been filed, but both are argued and submitted as in one case. We shall not discuss whether the court, by the service of its summons, obtained jurisdiction of the defendants, for there was a voluntary submission to such jurisdiction before its existence was denied by the answer. The action against Shabata and Foss was instituted upon a promissory note alleged to have been made by the former to the latter, and by the latter indorsed: “Demand and notice waived. F. I. Foss,”--and transferred to the State Bank of Nebraska. John R. Johnston, by purchase of the assets of the aforesaid bank from its receiver, became the owner of this note, and thereon brought suit against the maker and the indorser above indicated. It was contended by the defendants in the district court in both actions that the State Bank of Nebraska had originally been organized to exist 20 years, and that, this period having expired, the bank had ceased to exist, and that, therefore, John R. Johnston, by his purchase of the two notes, had obtained no title. In the first place, we note that there was introduced in evidence no copy of the original articles of incorporation of the bank in question. By oral evidence it was sought to show the ultimate fact above stated as to the organization of the bank, but by testimony of the same character it was shown that by an amendment of the articles of incorporation of this bank the period of its existence was extended so as to cover the transactions involved in this litigation. This latter testimony is corroborated by a copy of a record of the proceedings of the stockholders of said State Bank, whereby an amendment extending the term of the existence of said bank was adopted, and it was shown that this amendment had been filed as required by law before the transactions under review took place. Not only was this the case, but it was shown without question that the bank had been adjudged insolvent; that a receiver therefor had been appointed, who had duly qualified, and under the direction of this court had sold the assets of the said bank to John R. Johnston, by whom, as such purchaser, the suits had been brought on the notes involved in these proceedings. In this condition of affairs, it was proper to find that the transfer vested title in Johnston.

It is complained that the court did not find that Johnston, as the purchaser of overdue paper, did not stand in the same position as did George D. Stevens, to whom Foss transferred the note of Shabata. There could be no question, from a consideration of the evidence, that the district court was fully justified in assuming that a concession of this position would not aid the defendants. It may be conceded, as Mr. Foss testified, that this note was originally placed in the bank with the express understanding between Foss and the cashier that an attorney's fee due Foss from J. R. Johnston and said...