Fisher v. State ex rel. Fulton

OPINION

By TERRELL, J.

It is claimed that the trial court erred in proceeding with the trial without giving notice to attorneys and parties in accordance with the established rule of court. Nothing appeared in the bill of exceptions which would warrant this court in concluding that the trial court was in error in this respect.

It is alleged as a ground of error that the trial court committed error in overruling the demurrers of the plaintiffs in error to the petition of the Superintendent of Banks. We find no error in this respect.

It is alleged that the court erred in overruling the motion to quash service. We find that a motion to quash service was filed only by five of the plaintiffs in error. There is nothing in the bill of exceptions that would bring to our attention any claimed error on the part of the court in overruling the motion to quash service of summons.

It is claimed that the trial court erred in refusing to grant the defendants a jury trial. With respect to this allegation of error we find that all of the plaintiffs in error, with the exception of Gottlieb Kuebler, Bertha Beltz, Louis Hutner and Hilda Swasey, have, by their answers or statements of counsel in their briefs, admitted that they are the owners of stock in The Standard Trust Bank, but as a defense assert that they were induced by fraud to become stockholders in said bank.

We hold in accordance with the holding-in the case of Baumgartner v State ex Fulton, 48 Oh Ap 5 (16 Abs 671) that:

"Fraud on the part of the bank in inducing a person to acquire stock in and become a stockholder in said bank, is not available as a defense to such person, in an action to enforce the double liability of stockholders.”

It therefore follows that the petitioners in error would not be entitled to present such a defense of fraud to a jury if a jury trial had been granted.

We therefore conclude that the alleged error of the court in failing to grant a jury trial was not prejudicial.

As to the claim of Louis Hutner, we find that he admits in his answer that he was a stockholder as alleged. This admission would place upon him the stockholders’ super-added liability, and there was no error in the trial court in refusing to grant him a jury trial, as there was no issue to be presented to a jury.

It is our conclusion that no prejudicial error intervened in the trial of this case and therefore the judgment of the trial court is affirmed.

LIEGHLEY, PJ, concurs. LEVINE, J, dissents.

As to Gottlieb Kuebler, Bertha Beltz, Hilda Swasey and Mary Jacobson, the action has been settled and these proceedings in error are dismissed as to them.