King v. Armstrong

SHAW, J.

This is an action brought by plaintiff as receiver of an insolvent national bank in the state of Kansas to recover from defendant, as a stockholder of said bank, the amount of an assessment levied upon certain stock of which he was the alleged owner. After the bank had gone into voluntary liquidation a proceeding was instituted by one of its creditors in the United States circuit court for the district wherein the bank was located, in which proceeding plaintiff was appointed receiver of the bank. Thereafter, on February 12, 1900, the court, by an order made in said proceeding, levied an assessment of $38.84 upon each share of the capital stock of said bank, and ordered that the same be paid by the holders thereof to said receiver within sixty days from said date. It is alleged that at the time and ever since the incurring of the indebtedness for which the said assessment was levied defendant resided out of the state of

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Kansas, and that he has never been a resident of this state, nor been within the state for a period aggregating one year.

Defendant demurred generally to the second amended complaint, and also upon the ground that plaintiff had not legal capacity to sue in this state, and upon the further ground that the cause of action was barred by reason of the provisions of section 359 of the Code of Civil Procedure. The court sustained this demurrer, without leave to amend, and rendered judgment for defendant, from which plaintiff prosecutes this appeal.

The sole ground for sustaining the demurrer urged by the< respondent upon this hearing is that the cause of action is barred by said section 359, Code of Civil Procedure, which is as follows: “This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.”

The record does not disclose when either the original or the second amended complaint was filed. We feel warranted in assuming, however, from counsel’s discussion that the action was instituted more than three years after the expiration of the sixty days within which the assessment was ordered to be paid. The suit is to recover upon a liability created by law. Under the provisions of said section 359, Code of Civil Procedure, such actions are barred unless commenced within three years after such liability be created. Appellant concedes this to be true, but contends that inasmuch as defendant has been out of the state for the entire period, excepting less than one year, since the cause of action accrued, the time of his absence is not part of the time limited for the commencement of the action. In other words, defendant must, in order to avail himself of the statute, have been within the state for a period aggregating the full term of three years. This contention is based upon the provisions of section 351, Code of Civil Procedure, which excludes from the period within which actions may be commenced the time during which the party defendant may be absent from the state. Said section 351 is one of fifty-one sections, numbered 312 to 363, both inclusive, constituting the statute of limitations,