Lanigan v. North

RiddicK, J., (after stating the facts.) This is an action under-a statute of California by a creditor of an insolvent bank of that state against the estate of a stockholder of the bank who at the-time of his death was a citizen of Arkansas. The action is founded in part on a debt due by the bank to the plaintiff, North, and also-upon claims against the bank assigned to the plaintiff by certain-, other creditors of the bank. The first contention made here is that the liability oí a stockholder under the California statute should not be enforced in this state. The statute in question provides “that each stockholder of a corporation is individually and personally liable for such proportion of its debts and liabilities as the amount of stock or shares owned by him bears to the whole subscribed capital stock or shares of the corporation, and for a like proportion only of each debt or claim against the corporation. Any creditor of the corporation may institute joint or several actions against any of its stockholders for the proportion of his claim, payable by each, and in such action the court must ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith/'’ etc. Civil Code of California, § 322. The Supreme Court of California has decided that under this statute the individual corporator “does not occupy the position of surety, but that. of principal debtor. His responsibility commences with that of the corporation, and continues during the existence of the indebtedness.”. “It has frequently been decided,” says that court, “that members of a corporation who are answerable personally for the corporate debts and liabilities stand in the same position in relation to the creditors of the corporation as if they were conducting their business as a common partnership.'” Mohelumne Hill etc., Co. v. Woodbury, 14 Cal., 265; Hyman v. Coleman, 82 Cal., 653. It is not a penalty which the statute imposes upon the stockholder, but a debt which he assumes with the bank, and which can be enforced in the courts of this state. Nebraska National Bank v. Walsh, 68 Ark. 433. Nor do we think that it is necessary that this liability of the stockholder should be enforced in a court of equity. The statute definitely fixes the proportion of each debt or claim for which the stockholder is liable. He is liable for such proportion “of each debt or claim against the corporation” as the amount of stock owned by him bears to the whole subscribed capital stock of the corporation. The liability of the stockholder on any debt of the corporation is thus fixed by the statute with absolute precision, and there is no necessity to go into a court of equity. We are therefore of opinion that this contention of the appellant must be overruled. The next contention is that these claims are based on transactions had with the bank after the death of Lanigan, and that for this reason the probate court had no jurisdiction to determine them, and they could not be proved against his estate. But by becoming a stockholder in the bank Lanigan obligated himself to pay the proportion of its debts imposed on him by the statute. He died while still owning the stock, and while this obligation on his part was still in force. When afterwards the bank contracted the debt sued on, his estate became bound for its proportional part of the debt. On this question I have myself felt some doubt, but conclude with the other judges that these claims were provable against the estate of Lanigan. See Sand. & H. Dig. § 110. Again, it is said that the accounts against the bank were not assignable under our statute, and that the assignors should have been made parties. But these debts were contracted by the bank in California, and were assigned to the plaintiff in that state. It was shown that such claims were assignable under the laws of that state. If they were assigned in that state, the assignment vested the ownership in the assignee, and he could bring an action 'in his own name, either there or here. We look to the law of 'California in order to determine the effect of an assignment made in that state, and the effect of the assignments there was, as before ¡stated, to vest the legal title to these dioses in action in the plaintiff, North. Being the owner of the legal title, he ivas under our statute, as well as that of California, the real party in interest, and could bring this suit in his own name. For whenever by the lex loci contractus the assignment passes the legal title, the holder of such legal title may sue in his own name in whatever forum he may bring his suit. Levy v. Levy, 78 Pa. St. 507, 21 Am. Rep. 35; Story on Conflict of Laws (8th Ed.), § 354, p. 501; Minor’s Conflict of Laws, 393, 510. This ruling does not conflict with the decision in St. Louis, Iron Mountain & Southern Railway Co. v. Camden Bank, 47 Ark. 541, as counsel for appellant contends, for the account upon which the suit was brought in that case was assignable in this state. It was not assignable under our law, and came within the provision of our statute providing that “where the assignment of a thing in action is not authorized by statute, the assignor must be made a party.” Sand. & II. Dig. § 5624. The reason that underlies this provision of the statute is obvious, for, when the assignment of a chose in action is not authorized by statute, the assignment does not pass the legal title, and the assignor, being still in law the owner, should be made a party. But neither the statute nor its reason applies here, for the accounts sued on were assigned in California, where both parties to the assignment lived, and where the assignment was authorized by statute. The effect of that assignment being to vest the legal title in the assignee, we think, as before stated, that he could bring the suit in his own name there or elsewhere. The assignments are absolute, and transfer the accounts to the assignee without reservation of any right in the assignors, and it is not material here to consider whether they were made for collection or for some other purpose, as in either event the assignee, being the owner: of the legal title, has the right to sue and collect the money. “Most of the courts,” says Bliss in his work on Code Pleading, “have held that where negotiable paper has been endorsed, or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made, and, in an action by the transferee, he cannot, unless he has some defense, or holds some claim against the real owner, object that the suit is not in the name of the real party in interest. It is sufficient for him that the holder has a right to receive the money — that he will be protected from any other demand founded on the same claim.” Bliss, Code Plead. § 51; Meeker v. Glaghorn, 44 N. Y. 349; Allen v. Brown, 44 N. Y. 229. The last contention of counsel for appellant is that the statute of California applicable to this case was not properly proved. We have proceeded thus far on the assumption that this statute was established by competent evidence, in order to dispose of questions which arise in the ease, and we will now consider the point raised as to proof of the statute. The plaintiff offered to prove the statute by introducing a volume entitled, “The Codes and Statutes of Calofornia, compiled by F. P. Deering, of the San Francisco bar, and published by Bancroft-Whitney & Co.” This work does not purport to be an official publication of the laws of California, though the evidence shows that it is generally accepted by the courts and members of the legal profession in California as containing a correct exposition of the statutes of that state. No doubt, this opinion of the profession is correct, but courts do not take judicial notice of foreign laws. They must be proved.* And the rule established in this state is that the statute of another state must be proved by the statute itself,, or an authenticated copy thereof, or by a book published under the official authority of that state. McNeil v. Arnold, 17 Ark. 154; Dixon v. Thatcher, 14 Ark. 141. The book introduced here was not published under the official authority of the state, and for this reason we must hold that the circuit court erred in admitting it as evidence of the law of California. In addition to other points noticed, two of the claims upon which this action is founded were not authenticated as required by law. The affidavit attached to the claim of the Union Lime Company, a partnership, was made by F. 0. Wyman, who does not show that he was a member of the firm, ox that he was acquainted with the facts sworn to. The claim of the Los Angeles Lime Company, a corporation, was authenticated by the president of the company, when the statute requires that the affidavit of authentication be made by the cashier or treasurer. Sand. & H. Dig. §§ 114, 116. ' These claims should, under the requirements of the statute, be dismissed. The other claims appear to be authenticated as required by the statute. For the reasons stated the judgment is reversed, and cause remanded for a new trial. Footnotes [*] By an act approved April 11, 1901, it is provided that “the courts of this state shall take judicial notice of the laws of other states.” £Reportei\]