The Kansas State Bank v. Samuelson

• Decision Date: 07 March 1925
• Docket Number: 25,721
• Citation: 234 P. 40,118 Kan. 73
• Parties: THE KANSAS STATE BANK, Appellee, v. (R. W. SAMUELSON, Appellee) M. C. SHAIBLE, Appellant
• Court: Kansas Supreme Court

234 P. 40

118 Kan. 73

THE KANSAS STATE BANK, Appellee, v. (R. W. SAMUELSON, Appellee) M. C. SHAIBLE, Appellant

No. 25,721

Supreme Court of Kansas

March 7, 1925

Decided January, 1925.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

LIMITATION OF ACTIONS--Pleadings--Demurrer. A pleading which shows upon its face that the cause of action is barred by the statute of limitations is demurrable.

David Ritchie, and Omer D. Smith, both of Salina, for the appellant.

No appearance was made for the appellee.

OPINION

HOPKINS, J.:

The action was one to recover a stockholder's statutory liability for the benefit of a failed bank.

The Kansas State Bank of Salina failed, and on May 29, 1919, a receiver was appointed to wind up its affairs. On August 10, 1920, this action was filed against the defendant Samuelson. It was alleged in the petition that Samuelson was the owner and holder of seven shares of stock in the bank of the par value of $ 100 each, and was liable to the bank in the sum of $ 700. The case remained pending in the district court until February 17, 1923, at which time Samuelson, on leave of court, made the defendant Shaible a codefendant, and filed a cross petition against him, alleging that prior to the appointment of the receiver he (Samuelson) sold, assigned and delivered his stock (in the plaintiff bank) and transferred and delivered the certificate evidencing the fact, to his codefendant Shaible; that Shaible accepted the transfer and thereafter assumed to be and was a stockholder in the bank by virtue of said purchase, and was such at the time of the appointment of a receiver and at all times since. Samuelson admitted the appointment of the receiver May 29, 1919. (Other allegations of the petition and cross petition need not be set out.) Shaible pleaded, by general demurrer, that the petition and answer and cross petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff or in favor of the defendant Samuelson against him (Shaible). The court overruled Shaible's demurrer, and he appeals.

It is Shaible's contention that the cause of action attempted to be stated against him in Samuelson's cross petition is barred by the statute of limitations. There is no appearance by Samuelson. We do not, therefore, have the benefit of his theory or contention.

The statute under which the action was originally brought reads:

"The shareholders of every bank organized under this act shall be additionally liable for a sum equal to the par value of stock owned, and no more." (R. S. 9-110.)

The bank became insolvent sometime prior to the 29th of May, 1919. A receiver was appointed on that day. Any time thereafter the receiver could have maintained an action against Samuelson to recover his liability as an owner of the stock in question. If, as alleged by Samuelson, he transferred the stock to Shaible and Shaible became liable as the owner thereof, then, as between Samuelson and Shaible, Shaible occupied a position similar to that of principal and Samuelson to that of surety. The statute provides:

"A surety may maintain an action against his principal to compel him...