Union Sav. Bank of San Jose v. De Laveaga

LORIGAN, J.

This is an appeal from a judgment entered upon demurrer sustained to the complaint.

The complaint alleged, among other things, that the plaintiff was an insolvent banking corporation in liquidation, heavily indebted and unable on June 7, 1901, to pay its indebtedness, and that an assessment on the capital stock of said corporation was necessary for purposes of liquidation; that on April 1, 1891, J. V. de Laveaga, deceased, subscribed for one hundred shares of the capital stock of plaintiff corporation, of the par value of one hundred dollars each, and that a certificate for that number of shares was then issued to him; that said J. V. de Laveaga had in his lifetime paid but thirty dollars to plaintiff on his subscription to said capital stock, and was indebted for the balance of seventy dollars per share; that said J. V. de Laveaga died on August 14, 1894, leaving a last will which was duly admitted to probate, and the defendants were appointed and qualified as executors thereof; that said executors duly published notice to creditors, and that on February 1, 1896, the time for presenting claims against said estate had expired; that on June 7, 1901, the directors of plaintiff levied an assessment of fifty dollars per share on the capital stock of said corporation, such assessment to become delinquent July 12, 1901, and that the assessment levied on the stock for which J. V. de Laveaga, deceased, had subscribed was five thousand dollars, and was unpaid, and that the plaintiff had elected to recover the entire amount of the assessment by action.

[397]

A demurrer to the complaint was sustained by the court below on the ground, as is conceded by both parties, that no claim against the estate of De Laveaga, deceased, had been presented by the bank to the executors.

While respondents contend on this appeal that the ruling of the court in that respect was correct and that the judgment should be therefore affirmed, they have also presented a motion for an order of this court dismissing this appeal or affirming the judgment, upon the ground that appellant here is no longer a party or person interested in the estate of said José V. de Laveaga, deceased, or a claimant against said estate or the assets thereof or otherwise; that the administration of said estate has been finally and definitely settled and closed; and that there is no executor of said decedent, or any administration of said estate, to which any relief asked for by appellant could apply or be made applicable or be enforced.