Herbert Kraft Co. Bank v. Bank of Orland

[65]

COOPER, C.

This is an appeal from the judgment, for the purpose of reviewing the order sustaining defendants’ demurrer to the amended complaint.

It is alleged that one W. R. Hall, being indebted to one Kraft in the sum of three thousand dollars, on or about-the twenty-sixth day of January, 1896, caused to be issued to said Kraft, to secure the said indebtedness, a certificate of seventy shares of the capital stock of defendant bank, and that, thereafter, to further secure the said sum, said Hall assigned to said Kraft thirty additional shares of said capital stock. The said stock was of the face value of one hundred dollars per share. That subsequent to the transfer by said Hall to said Kraft of the said shares of stock, as security, the said Kraft assigned the indebtedness due him by Hall, and the said stock so held as security, to plaintiff, and “said one hundred shares of stock were taken as aforesaid, by said plaintiff, and have ever since been and now are held by it as a pledge, as aforesaid, to secure said indebtedness”; that there had been issued by defendant bank one thousand shares of its capital stock; that defendant bank, on the eighteenth day of May, 1898, “levied, or pretended to levy, an assessment upon said one thousand shares of subscribed stock, of $32,637 per share”; that notice of said assessment was regularly published, the assessment was not paid, the defendant bank, through its directors, made an order that said one hundred shares, and other shares upon which the assessment was delinquent, should be sold at public auction, and accordingly, on the twenty-fifth day of July, 1898, the said one hundred shares so held by plaintiff as security were sold to defendants Nelson and Scearce, and a new certificate issued to them; that the capital stock of defendant bank is five hundred thousand dollars, divided into five thousand shares, of the par value of one hundred dollars each, of which only one hundred thousand dollars has been subscribed, and that one fourth of the capital stock has not at any time been subscribed; that defendant bank never intended to, and did not, collect the said assessment upon any other stock except that so held by this plaintiff, and that said assessment was not uniform, and was intended as a means of enforcing an indebtedness due by Hall, the original owner of the said one hundred shares, to the defendant bank; that the defendants allege and claim that defendants Nelson and Scearce are the owners of,