O'Connor v. Witherby

Citations

• 111 Cal. 523
• 44 P. 227
• 1896 Cal. LEXIS 616

Syllabus

<p>Insolvent National Bank—Assessment by Comptroller of Currency — Liability of Stockholders— Action by Receiver — Pleading— Averment of Nonpayment.—In an action by a receiver of an insolvent national bank, appointed under the laws of Congress by the comptroller of the currency, against one of its stockholders, to enforce an assessment made by the comptroller, the complaint sufficiently alleges nonpayment of the assessment at the time of the commencement of the action, as against a general demurrer, by an averment that “ the defendant, though demanded, has failed and refused to pay said assessment, or any part thereof. ”</p> <p>Id.—Averment of Necessity of Assessment — Direction of Suit by Comptroller.—An averment that the comptroller made the assessment against the s! ockholders, and directed the action to be brought, is a sufficient averment, as against a general demurrer, that he had determined the necessity of such action, and that lie had decided when he made the assessment that it was necessary to enforce the personal liability of stockholders to pay the debts of the bank.</p> <p>Id.—Conclusiveness of Comptroller's Action—Striking Out Improper Defense. —The action of the comptroller in making an assessment upon the stockholders of an insolvent national bank is conclusive upon the stockholders, and cannot be controverted in a suit against a stockholder to enforce the assessment; and an averment in an answer in such suit that the comptroller in making the assessment acted without due information of the assets and liabilities of the bank, and that an assessment one-half as great would have been sufficient, sets forth no defense, and is properly stricken out.</p> <p>Id.—Stock Held Subject to Law.—The owner of stock in a national bank holds it in view of and subject to the provisions of the law under which the bank is organized.</p> <p>Id.—Instructions—Direction to Find for Plaintiff.—Where there is no substantially conflicting evidence as to .facts determinative o