Luikart v. McDonald

HOUSER, P. J.

From the record herein it appears that the judgment upon which the instant appeal is predicated was rendered by the trial court pursuant to an order of dismissal of an action that was brought by a statutory receiver of an insolvent Nebraska bank against one of its stockholders to recover a judgment against him.because of his statutory liability as such stockholder. It also appears that the order of dismissal of the action was made in response to a motion to that effect that was presented by defendant and was based, not only upon the ground that plaintiff had not “the legal capacity to sue”; but also “on the further ground that a special statutory remedy given by the laws of another state, (for enforcing the statutory liability of the stockholders of a corporation organized under its laws, limits the liability, and where such remedy is not afforded by the laws of this state, the liability of the stockholders of such corporation cannot be enforced in this state against resident stockholders thereof”.

In substance, the principal question presented on the appeal is whether a foreign statutory receiver of an insolvent corporation may sue a stockholder thereof, resident in this state, on account of the statutory liability of such stockholder. In principle the question is not new. Throughout the many

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jurisdictions within the United States, repeatedly it has been decided; and although in that regard the authorities arc not entirely harmonious one with the other or the others, the weight of judicial opinion is largely in favor of. the affirmative. In itself, to even cite the many cases that bear directly upon the issue here presented would be a task of some proportions ; but to enter upon a statement of the particular facts that were involved in each of such cases and to attempt to either harmonize the respective conclusions reached therein, or to distinguish the various cases that favor the right of a statutory receiver to sue in a state other than that in which he received his appointment, from those that reject that principle, would require the expenditure of energy that would not be compensated by the result thereby to be obtained. Suffice it to say that, after due consideration having been given by this court to the pertinent general authorities, and especially to those of this state that bear directly upon the issue here presented, it is concluded that not only does the right of the foreign statutory receiver to sue in this state on a claim of stockholder’s liability obtain by reason of comity, but as well, where local creditors would not be prejudiced thereby, to refuse the exercise of such right would be in contravention of the full faith and credit clause of the federal Constitution.