Commercial & Savings Bank v. Erdman

MORIARTY, C. This appeal is from an order overruling a demurrer to the complaint. The complaint alleges that the plaintiff Commercial & Savings Bank is a state banking corporation; that the plaintiff Hirning is the state superintendent of banks; that on or about January 24, 1924, the plaintiff bank suspended 'business and was' placed in charge of the said superintendent of banks, and is in his charge and control for the purpose .of liquidating and closing its affairs. It further alleges the making by the defendant of two promissory notes payable to the plaintiff bank, setting forth the notes in full. It further alleges ownership of the notes by the plaintiff bank and their nonpayment. . To this complaint appellants interposed a demurrer alleging: First, that the plaintiff Hirning, as superintendent of banks, has not legal capacity to sue or prosecute the action; second, that the (complaint does not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, and this appeal is taken from the order overruling it. Appellant’s counsel base their entire argument upon the contention that, to make a cause of action and show Hirning’s authority to sue, the complaint must allege facts showing the right of the superintendent to take charge of the bank, and that the complaint herein fails to comply with this requirement. The complaint alleges that the bank suspended business and was placed in charge of the superintendent. Section Í8925, R. C. 1919, provides that, if any bank “shall suspend ot refuse to make payment of its obligations,” the superintendent may forthwith take possession of such bank, and retain possession until the bank resumes business or its affairs are finally liquidated. The facts so pleaded show that Hirning, as superintendent, is a proper party plaintiff under this statute.. That the superintendent has legal capacity to sue has been affirmed by this court. Hirning as Superintendent v. Oppold (S. D.) 201 N. W. 721; Hirning v. Forsberg et al. (S. D.) 206 N. W. 471. The question whether the plaintiff Hirning is authorized to maintain this action cannot be raised by general de [100] murrer to the entire complaint under our statute. Section 2348 of Revised Code 1919 enumerates all proper grounds of demurrer in this state. As to the contention that the compaint does not state facts sufficient to constitute a cause of action ,the complaint pleads the notes ¡by setting them out in' full, alleges their execution by the appellant, their nonpayment, and their present ownership, by the respondent bank. The notes as pleaded show their maturity prior to the commencement of the action. These are the only facts required in an action on promissory notes. Therefore, if appellant’s theory were correct and Hirning not a proper party plaintiff, the complaint states a cause of action in favor of the bank. But under the decisions of this court, above cited, Hirning acquired the right to sue on debts due the bank when he took possession of its assets, and the complaint states a cause of action in his favor. Whether the complaint states facts sufficient to constitute a cause of action in favor of both plaintiffs is not properly raised by a general demurrer. Under our statutory practice, in an action instituted' by several plaintiffs, a general demurrer to the complaint must be overruled, if the facts alleged are sufficient to constitute a cause of action in favor of any of the plaintiffs against any party interposing the demurrer. Nonjoinder is made a statutory ground of demurrer; misjoinder of parties is not. Mader v. Plano Mfg. Co., 97 N. W. 843, 17 S. D. 553; Evans et al. v. Fall River County, 68 N. W. 195, 9 S. D. 130; Kucera v. Kucera, 57 N. W. 47, 86 Wis. 416. The order appealed from is affirmed. MISER, 'Circuit Judge, sitting in lieu of SHERWOOD, J.