Hammons v. Crozier

BARNARD, P. J.

A. T. Hammons, superintendent of banks of the state of Arizona and

ex-officio

receiver and in charge of the Bank of Winslow, an insolvent banking corporation of the state of Arizona, brought this action against these defendants residing in the state of California, for the purpose of enforcing and collecting their “double liability” as stockholders of' the Bank of Winslow. Before trial, the action was dismissed as to certain of the defendants. Defendants Brown, Moritz and Zwickey defaulted. Issue was joined by defendants Crozier, Smith, Tuttle and Ensign, and after trial the court entered a jugment that the plaintiff take nothing as against any answering defendant; and further, that the plaintiff take nothing as against any defaulting defendant. From this judgment the plaintiff has appealed upon the judgment-roll alone.

Appellant first urges in his opening brief that he is entitled to a judgment against the defáulting defendants. Whether or not this is so depends upon whether the complaint states a cause of action.

(Swain, v. Burnette,

76 Cal. 299 [18 Pac. 394].) In his reply brief, appellant calls attention to the fact that the Supreme Court of Arizona, in the case of

Dagg

v.

Hammons,

34 Ariz. 445 [272 Pac. 643], an action involving the same bank and the same principles of law as are here involved, decided that there was no cause of action against the stockholders of this bank until the degree of insolvency was judicially determined in the Superior Court of Arizona, in order to determine what percentage of liability is to be called for from the stockholders.

[717]

Appellant then admits that this action was prematurely-brought, having been commenced before any such judicial determination of the degree of insolvency. In view of this decision of the Supreme Court of Arizona, it appears from the record that the complaint in this action fails to state a cause of action, and no reason appears for reversing that portion of the judgment referring to the defaulting defendants.