Vance v. Chapman

• Decision Date: 10 January 1928
• Docket Number: No. 7664.,7664.
• Citation: 23 F.2d 914
• Parties: VANCE v. CHAPMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 914 (1928)

VANCE v. CHAPMAN.

No. 7664.

Circuit Court of Appeals, Eighth Circuit.

January 10, 1928.

Charles E. Wells and Paul F. Cooper, both of Shawnee, Okl., for plaintiff in error.

W. L. Chapman, of Shawnee, Okl., and Embry, Johnson & Tolbert, of Oklahoma City, Okl., for defendant in error.

Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.

VAN VALKENBURGH, Circuit Judge.

Plaintiff in error, receiver of the National Bank of Commerce in Shawnee, Okl., brings suit against defendant in error on two causes of action; the first, to recover on a promissory note for the principal sum of $5,646.66, and, the second, to recover as for stockholder's liability on 50 shares of the capital stock of said bank. The answer admitted the execution of the note, but alleged that it was made for accommodation of the bank, and was without consideration; denied that defendant in error was a stockholder in said bank; and, in general, denied all allegations of the petition not specifically admitted. For reply the receiver averred that the defendant in error, knowingly permitted his name to remain on the books as a stockholder; that the depositors and creditors relied upon the ownership of the stock, and the liability thereon fixed by law; that defendant in error is therefore estopped from denying ownership; also from denying liability on the note sued on, for the reason alleged, that it was given as the purchase price in whole or in part of said stock.

It appears that for some years prior to September 24, 1923, there were doing business in Shawnee, Okl., the Caldwell State Bank, organized under the laws of Oklahoma, and the National Bank of Commerce of Shawnee, organized under the Acts of Congress. Defendant in error owned five shares of stock, of the par value of $100 per share, in the Caldwell State Bank. The officers of these two banks were substantially the same — one M. L. Caldwell and his two sons, Jess M. Caldwell and Russell Caldwell, acting as such. On or about September 24, 1923, the National Bank of Commerce in Shawnee was organized and took over the assets and liabilities of the two banks just described. April 26, 1924, the National Bank of Commerce in Shawnee was declared insolvent by the Comptroller of the Currency, and plaintiff in error duly succeeded as its receiver.

At the trial, upon the first count, plaintiff in error introduced the note sued on. Defendant in error testified that the same was entirely without consideration, and made for the accommodation of the bank at the instance of some of its officers, who assured him that he would not be called upon to pay it. In this contention he was corroborated by his secretary and stenographer, who was present when the note was presented for signature, and detailed the conversation between defendant in error and the cashier of the bank to the effect that the note was for the bank's accommodation. The receiver was able to introduce no testimony in contradiction. There was, however, testimony that on or about August 15, 1923, defendant in error made a note for the sum of $5,500, in like manner for the accommodation of the bank. This note was subsequently marked "paid," and the note in suit thereafter was executed; the amount of the first note being augmented in the second note by what would have been interest on the first note for the period between August and December. It was further shown that the National Bank in Shawnee was organized with a capital stock of $100,000 and surplus of $20,000. It was inferentially claimed by the receiver, therefore, that the $5,500 represented by the note, added to the five shares of stock which defendant in error formerly owned in the Caldwell State Bank, was the purchase price of the 50 shares of stock in the National Bank of Commerce in Shawnee of which defendant in error was claimed to be the owner.

Upon the second cause of action plaintiff in error introduced in support thereof a stock certificate book of the bank, one of the stubs of which reads as follows:

"Certificate No. 32; 50 shares issued to W. L. Chapman, dated September 25, 1923. Transfer ______ and date ______. No. original shares surrendered ______ and so on. And received certificate No. 32 for 50 shares."

Also the testimony of one Estill, president of the bank, that in conversations with defendant in error the latter had stated that he was a stockholder in the National Bank of Commerce of Shawnee, of which the National Bank of Commerce in Shawnee is successor. The amount of such stockholding was not stated. This witness, on cross-examination, was shown to be under conviction for an offense growing out of the failure of the bank; admitted that, although president of the bank, he never saw the stock book in question, and had no knowledge that defendant in error was a stockholder, if he was, other than the alleged admission to which he testified. Defendant in error had never attended a stockholder's meeting within the knowledge of this witness. This is all the evidence on the part of the receiver in support of the second count. Russell Caldwell, vice president of the bank, and Jess M. Caldwell, cashier, were called as witnesses by the receiver, but refused to testify concerning the stock book and the note under claim of immunity. It was shown that Russell Caldwell was under indictment for offenses involving this stock transaction among others. The entry on the stock book was shown to be in the handwriting of the witness Russell Caldwell.

This entry showed no receipt for the stock certificate by defendant in error. The certificate itself was not produced. Chapman testified that he had never subscribed for any stock; had received no certificate therefor, and had no knowledge of this entry on the stock book of the bank, nor that he was considered a stockholder; that he had never attended a meeting of the stockholders, nor been notified so to do; that he had never stated to the president of the bank, nor any one else, that he was a stockholder; that, at the time he signed the notes in question, no mention had been made of his becoming a stockholder as a consideration for the making of the notes. In this statement he was corroborated by his secretary. At the close of all the testimony the court instructed a verdict in favor of defendant in error upon both counts.

The only errors assigned are thus condensed by counsel for plaintiff in error in the brief: "The court erred in sustaining the defendant's motion to instruct the jury to return a verdict in favor of defendant, and in taking the case from the jury and instructing them to return a verdict in favor of the defendant."

In the assignment of errors as filed complaint was made also to the action of the court in overruling the motion of counsel for plaintiff in error for an instructed verdict in favor of plaintiff. Defendant in error still insists upon the effect of such action as taking the case from the jury and submitting the issue of fact to the judgment of the court. However, plaintiff in error states that this assignment was due to the inadvertence of counsel who did not participate in the trial, and, inasmuch as such a motion on the part of plaintiff in error is not found in the bill of exceptions, the point must be disregarded. It thus appears that the only error assigned is to a ruling of law occurring in the course of the trial, and not a part of the record proper. At the outset we are met with a motion to dismiss on the ground that plaintiff in error does not present by bill of exceptions any objection or exception to such ruling of the trial court. For the same reason, it is insisted that the judgment should be affirmed. "In federal courts in actions at law a bill of exceptions, stating the ruling and the exception, settled and signed by the trial judge, is indispensable to the review of rulings on motions, oral or written, to strike out pleadings, as well as rulings on motions based on the evidence, or requests for instructions." Chicago Great Western Ry. Co. v. Le Valley (C. C. A. 8) 233 F. 384; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592-599; Young v. Martin, 8 Wall. 354-356, 19 L. Ed. 418; Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298, 299, 12 S. Ct. 450, 36 L. Ed. 162; Rodriguez v. United States, 198 U. S. 156-165, 25 S. Ct. 617, 49 L. Ed. 994; Ghost v. United States (C. C. A. 8) 168 F. 841; Ana Maria Sugar Co. v. Quinones (C. C. A. 1) 251 F. 499-504; Franklin County v. Furry (C. C. A. 7) 144 F. 663, 664; Adams v. Shirk (C. C. A. 7) 121 F. 823; Western Dredging & Improvement Co. v. Heldmaier (C. C. A. 7) 116 F. 179-184.

The bill of exceptions tendered by plaintiff in error, settled and signed by the judge who tried the case, contains neither objection nor exception to the action of the court in sustaining the motion of defendant in error for a directed verdict. Counsel for plaintiff in error point to an entry from the clerk's journal of the proceedings which appears in the transcript or record proper as follows: "The defendant presents his evidence and proof and rests, and the plaintiff presents evidence and proof in rebuttal and rests, and the taking of evidence is closed. Thereupon the defendant moves for directed verdict in his behalf, and, the court being duly advised in the premises, it is ordered that said motion be and the same is sustained and exceptions allowed the plaintiff. Thereupon, the jury, by direction of the court, returns its verdict as follows, to wit: (etc.)", as bringing the errors complained of before this court in due form, but moves, if the court should think otherwise, that a writ of certiorari be granted to the trial court directing it to return a true and complete record, including the exception taken by plaintiff in error to the action...