Security State Bank v. Gannon ( 1918 )

WHITING, P. J.

Two appeals in this action have been submitted together. This cause has been before us upon a former appeal, and our decision ‘.therein will be found' reported in Security State Bank v. Gannon, 39 S. D. 232, 163 N. W. 1040. Reference is made to such decision for a statement of the nature of the action and -for our holdings therein. After the decision upon such former appeal the trial court made a finding, based upon evidence taken before such appeal, which finding was to the effect .that the public examiner had. levied an assessment on each of the defendant stockholders, requiring payment on or before May 25, 1914, of an assessment equal to the par value-of stock owned. The trial court ■then entered judgment against the present stockholders -holding them primarily liable for the amount of such assessments with interest from May 2-5, 1914, and entered judgment .aga-inst the former stockholders, holding them, secondarily liable to- the amount of their stock with interest from May 25, 1914. The -trial- -court denied the -claim of the minors for reimbursement for life insurance moneys belonging to- such minors and- which had been- used by their mother in the reorganization of th-e bank. It also- denied the -claim -of the administrator )of the estate of Albert W. Morse for reimbursement for mpneys of such estate used by Mrs. Morse-in Hie reorganization of said bank. From such judgment certain of the new stockholders, the said administrator, the guardian of the minors, and Mrs. Morse have appealed.

A'l-l the appellants question, the correctness of -that, part of the .judgment .allowing -interest -from the date -o,f the alleged assessment. The administrator and the guardian contend' -that the court erred in not allowing their claims- f-o-r reimbursement. „ •

The claims for reimbursement were correctly disallowed. It was the intention of this court, which intention,,- we think, clearly appears from the words .of our former opinion, to hold the bank exempt fr-om any liability to the minors 'or' the -estate of Albert W. Morse. - ■ • ' •

Appellants attack upon 'various'- ground's the allowance of interest upon the amounts for which they are held as stockholders. As we view this' matter, it-becomes necessary to consider b.út one of these grounds. Appellants contend that, because of .the nature of the action, the court had no jurisdiction to find1 that there had been an assessment and to render judgment on such assessment. In this we think appellants are clearly correct. The 'action brought by the public examiner was in no sense 'an' action to ’ recover the amount due upon assessments theretofore made. There .was no allegation that any assessment had been made. It wa's! an action wherein, among other things, the public examiner sought to hold the .stockholders upon itbeir constitutional liability and to have the court fix the amount and nature of such liability. It therefore is unnecessary for us to determine whether the .public, examiner has power to1 levy an assessment without the direction or approval of the court; no such a question could properly arise under the pleadings. It follows that until there was a judgment of the court determining the amount of the liability of a stockholder such liability had in no manner become liquidated so as to bear interest.

The amount of such liability, to wit, the par value of 'the stock, was adjudicated in the first judgment appealed from. .Such judgment covered numerous matters erroneously determined' by the trial court. There1' is nothing in our former decision -reversing the trial court’s adjudication as to toe amount of defendant’s liability, though we did hold that the trial court erred in the determination of toe nature, of toe former stockholders’ liability. Under such former judgment the -amount of liability was determined. The derision of this court sustained the holding of the trial court in that respect.

We are therefore of the opinion that the judgment now before us on appeal should be modified to' the extent of allowing interest from the date of the former judgment, March 21, 1916, instead of from May 25, 1914.

As so modified', the'judgment is affirmed',' without costs.

GATES, J., not sitting.