Hencke v. Twomey

Mitchell, J. The title to the premises in controversy all depends-upon the validity of the judgment rendered in the District Court of St. Louis County, in 1879, in favor of the receiver of an insolvent national bank against Mrs. Moses, a stockholder, to recover an assessment made by the Comptroller of the Currency on her personal liability for the debts of the bank. Mrs. Moses being a nonresident,, she was proceeded against by attachment of the real estate in question, and by publication of the summons. Under the statute then in force, in actions for the recovery of money the summons could be served on a nonresident by publication only when the action arose on contract; and it is urged that the judgment referred to was void because an action against a stockholder of a corporation to recover on his personal liability, under the statute, for the debts of a corporation, is not one “arising on contract.” 1866, G. S. ch. 66, § 49. The point is not well taken. Upon becoming a stockholder, a party assumes the obligations imposed by the statute, which forms a part of the contract. The contract is-one implied by statute. While the action of the Comptroller in making the assessment is essential to the receiver’s right of action, yet it is not the ground of the stockholder’s liability. His liability grows out of his implied contract. 2. The summons in the action was in the form prescribed for [555] actions on contract for the recovery of money only; the judgment was in form a general one for the recovery of money; and the execution issued was general, and not special. Exception is taken to this practice, it being claimed that, the action being really one in rein against the property attached, the summons should have been in different form, and the judgment and execution special. If this were all true, the defects would be mere irregularities, which would not go to the validity of the judgment, and would not amount to a waiver of the attachment lien provided the attached property was sold on the execution, as was the fact in this case. This has been held even in those states in which the practice insisted on by counsel obtains. Am. & Eng. Enc. Law, § 8, tit. “Foreign Attachment.” But the practice adopted in this instance is the one that has been generally followed in this state from the earliest date, and we are not disposed to disturb it at this late day. Our conclusion that the action was one arising on contract disposes of the point that application for judgment should have been made to the court, which, if true, would not have rendered the judgment void. Judgment affirmed. (Opinion published 60 N. W. 667.)