Miller v. Lane

MELVIN, J.

Plaintiffs appeal from a judgment in favor of defendant, Ezra F. Lane, who was sued upon an alleged stockholder’s liability arising from his ownership of certain stock of a bank formerly doing business in the state of Colorado. The bank of which Lane was a stockholder had been found to be insolvent in 1899 and its property had passed into the hands of an assignee, who settled certain preferred claims and paid the depositors a percentage of the amounts due them. By an action commenced June 9, 1905, certain creditors of the bank proceeded in a court of competent jurisdiction in the state of Colorado, under the appropriate statute of that state, and on May 28, 1907, a decree was. made and entered by which the amount of personal liability of each stockholder was declared, Lane’s obligation being found to be $5,353.

(Kipp

v.

Miller,

47 Colo. 598, [135 Am. St. Rep. 236, 1.08 Pac. 164].) By the same decree and in accordance with statutory authority, the Colorado court appointed the plaintiffs herein to represent and to sue for the benefit of all creditors, and under this power they brought this action on October 21, 1908.

In his answer the defendant alleged that for more than ten years immediately theretofore he had resided continuously in

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the state of California; that the alleged cause of action arose upon subscription to the capital stock of the state bank of Monte Vista,

Colorado;

that the shares of stock were issued to him on or about June 15, 1900; that he never resided within the state of Colorado; was never served with process within that state; and that no judgment was ever obtained against him upon any liability by reason of said subscription to said capital stock. He pleaded the bar of the statute of limitations, specifying sections 338, 339, 341 and 359, of the Code of Civil Procedure.

The court found in accordance with practically all of the allegations in the complaint and in substantially the language of the answer, including the bar of the statute of limitations.