Wigton v. Bosler

• Decision Date: 28 May 1900
• Docket Number: 36.
• Citation: 102 F. 70
• Parties: WIGTON v. BOSLE.
• Court: U.S. District Court — Eastern District of Pennsylvania

102 F. 70

WIGTON v. BOSLE.

No. 36.

United States Circuit Court, E.D. Pennsylvania.

May 28, 1900

A. T Jenkins, Charles Chauncey, and T. F. Bevington, for plaintiff.

Richard C. Dale, for defendant.

DALLAS Circuit Judge.

This action was brought to enforce a liability to which the defendant is alleged to be subject as a stockholder of the Iowa Savings Bank, by virtue of the laws of the state of Iowa. At the outset of the trial the counsel for the plaintiff stated:

'I understand that the court takes judicial notice in such cases as this of the statutes of the state, and I therefore want to call attention to the laws of the state of Iowa (Miller's Code, July 4, 1888, p. 609), ' etc.

The learned counsel were unquestionably right in understanding that the courts of the United States take judicial notice of the public laws of each of the several states, when any such law is properly applicable to a case on trial in a federal court; but they were also right in supposing that the trial judge was in fact unacquainted with the statutes of Iowa, and that therefore the burden was upon the plaintiff to supply the needful information. He, however, presented only the one statutory provision above mentioned, and as that provision is, as is now conceded, inapplicable to this action, the judgment of nonsuit was, as the case then appeared, clearly right. Yet I am asked to strike off that judgment, for the reason that there is another Iowa statute which it is contended would, if it had been brought to the attention of the court in due season, have precluded its entry; but I have not been convinced that this additional statute should be considered upon this motion. The action of the court was not founded upon a refusal to take judicial notice of anything which it should have noticed, but upon its compliance with the plaintiff's request that it should notice a certain particular statute, which he asserted to be the pertinent one; and consequently the case, from beginning to end, was tried upon that supposition. supposition. Under these circumstances, the plaintiff, if the case had gone to the jury, would not have been entitled to have a verdict against him set aside, and, a fortiori, he is not entitled to be relieved from the requirement, which a nonsuit imposes, of paying the costs of this action, and then bringing a new one if he shall be so advised. Steph. Dig. Ev. art. 59; Tayl. Ev Sec. 21, and cases there cited. But, even if the statutory provision which is now relied on had been produced on the trial, I am of opinion that the entry of the nonsuit would have been proper. That provision is as follows: 'Shareholders in banks organized under the provisions of this act shall be individually and severally liable to the creditors of the corporation of which they are shareholders over and above the amount of stock by them held, to an amount equal to their respective shares so held, for all its liabilities accruing while they remain shareholders, and no transfer of stock shall affect such liability for the period of six months thereafter, and should any bank become insolvent and its assets be found insufficient to pay its debts and liabilities, its shareholders may, to that extent, be compelled to pay such deficiency, in proportion to the amount of stock owned by each.'

I assume, without deciding, that the effect of this provision, as a whole, is to make the liability which it creates an asset of the corporation. But the plaintiff's declaration is inconsistent with this assumption. It alleges that the laws of the state of Iowa provide 'that shareholders are individually and severally liable to the creditors of the corporation,' and, if this were really the effect of this statute, the receiver could not, aside from any other objection, maintain this action. Mechanics' Sav. Bank v. Fidelity Insurance Trust & Safe-Deposit Co. (C.C.) 87 F. 113; Id., 38 C.C.A. 193, 97 F. 297; Whitman v. Bank, 20 Sup.Ct. 477, Adv. S.U.S. 477, 44 L.Ed.-- . Hence there seems to be a variance between the pleading and the proof, which cannot be material, since it is only by assuming that the proof establishes a right not declared upon that any cause of action can be said to have been shown.

There is, however, more substantial ground for upholding this nonsuit. The plaintiff bases his right to sue as receiver upon his allegation that a court of the state of Iowa appointed him receiver of the Iowa Savings Bank, of that state, 'inter alia, to collect and receive all its assets,' and thereafter ordered and made an assessment upon the par value of the stock of each shareholder, and authorized and directed him (the receiver) 'to proceed at once to use all legal means to...