Murtey v. Allen

Watson, J. The plaintiff, as receiver of the Commercial Bank of Weeping Water, in the state of Nebraska, under an appointment by the district court within and for the county of Cass, in the state of Nebraska, in a proceeding in which the state of Nebraska is complainant and the said bank is defendant, has brought his action of debt against the defendant, a resident of this State, and an alleged stockholder in said bank, to enforce an alleged liability existing against him by force of § 7, of Art. 11, of the constitution of the state of Nebraska, which reads: “Every stockholder in a banking corporation or institution, shall be individually responsible and liable to its creditors, over and above the amount of stock by him held, to an amount equal to his respective stock or shares so held, for all its liabilities accruing -while he remains such stockholder.” The first count of the declaration was waived by the plaintiff in the county court, and to the other two counts the defendant interposed a general demurrer which was sustained by the county court, and upon exceptions thereto by the plaintiff, the case is here upon the sufficiency of the declaration. In determining the questions involved, we are confined to the averments in the declaration, and cannot take judicial notice of the constitution or statutes of the state of Nebraska, nor of their interpretation by the highest court in that state. Hartland v. Windsor, 29 Vt. 354; Hancock National Bank v. Ellis, 166 Mass. 414: 55 Am. St. Repts. 414. Assuming the liability under the constitutional provision in question to be contractual in nature, and to be construed by the laws of Nebraska, the form of remedy, and the mode of proceeding, are regulated by the laws of the place where the action is instituted: Story on Conflict of Laws, § 556; Harrison v. Edwards, 12 Vt. 648; and if the constitution or statutes of the state of Nebraska contain provisions [381] prescribing a specific remedy for enforcing this liability, such provisions have no extraterritorial force and we are not affected thereby. 2 Morawetz on Corp. § 876. The statutes of this State contain no provisions creating any new remedy at law, or enlarging or changing the ■common law remedy, if such exists, upon such a constitutional or statutory liability. In that regard, a receiver has no remedy at law, other than such as is given him by the common law. It is fundamental that to authorize a party to sue at law in his own name, he must have the legal title to the matter or thing in controversy, and no exception to this rule exists, at common law, as to suits brought by a receiver. He can maintain an action at law in his own name only when he has in himself the legal title. High on Receivers, § 220; Newell v. Fisher, 24 Miss. 392; Yearger v. Wallace, 44 Pa. St. 294. A receiver derives his authority from the court appointing him, and his possession of property and property rights, is the posséssion of the court for the benefit of whomsoever the same shall ultimately be adjudged to belong. The title thereto is unchanged. Chicago Union Bank v. Kansas City Bank, 136 U. S. 236. The liability under the constitutional provision upon which this action is based, is for the benefit of creditors, and the allegations in the declaration do not show the receiver to have such a legal title as will enable him to maintain an action at law in his own name, in this State, for its enforcement. Judgment affirmed.