Union Savings Bank v. Rinaldo

COOPER, P. J.

Action to recover the amount of an assessment levied upon the capital stock of plaintiff to the extent of the

pro rata

due upon the number of shares owned by defendant.

The case was tried by the court, and findings filed, upon which judgment was entered for plaintiff. This appeal is from the judgment and order denying defendant’s motion for a new trial.

There is no question raised as to the judgment being the legal conclusion from the facts found, nor is there any claim that the court erred in any ruling during the trial.

It has been repeatedly held that the plaintiff being insolvent, its directors may assess the shareholders on the unpaid capital stock for the purpose of liquidating the indebtedness and winding up its affairs.

(Union Sav. Bank

v.

Dunlap,

135 Cal. 628, [67 Pac. 1084] ;

Union Sav. Bank

v.

Leiter,

145 Cal. 696, [79 Pac. 441] ;

Union Sav. Bank

v.

Willard,

4 Cal. App. 690, [88 Pac. 1089].) Defendant was a shareholder, and has not paid the assessment or call upon which the action is based.

It is claimed that the complaint does not state facts sufficient to constitute a cause of action. It states that plaintiff is an insolvent corporation; that the amount of its capital stock is ten thousand shares of the par value of $100 each, and that defendant is the owner of fifty-five shares thereof; that the whole of the capital stock has not been paid up, and that it is indebted to its depositors and other creditors' in the sum of over $500,000; that its board of directors duly made an order levying an assessment of $10 per share upon its capital stock payable immediately to its secretary at its banking-house in the city of San Jose, and fixed June 26, 1899, on which the unpaid assessments should be delinquent; that notice of said assessment was duly published for four sue