I'1'ATE NAT. BANK V. SAYWARD.
SAYWARD et al.
STATE NAT. BANK OF CLEVELAND, OHIO, (Circuit Court, D. Massachusetts. No. 756.
March 8, 1898.)
JURISDICTION-FoREIGN CORPORATION-AcTION AGAINST STOCKHOLDER.
A suit in equity may be maintained by a creditor or a corporation against a stockholder only In the courts or the state in which the corporation 1. created. In an action by a creditor of an Insolvent OhIo corporation against a stockholder to enforce his liability under the laws or Ohio, the corporation is a necessary party derendant, and a demurrer on that ground will be sustained.
ACTION AGAINST STOCKHOLDER-DEMURRER.
This was a bill in equity by the State National Bank of Cleveland, Ohio, against Samuel Sayward and others, to enforce the stockholders' liability. Russell & Putnam, for complainant. W. B. French, for defendant Geo. Linder. Chas. A. Drew, for defendant John F. Annable. Chas. D. Adams, for defendant Geo. F. Reed. COLT, Circuit Judge. This bill is brought by a creditor of an Ohio corporation against certain stockholders, residents of MassachuSetts, praying that said stockholders may be ordered to pay to the (lomplainant a sum equal to the par value of their stock, or so much thereof as may be necessary to satisfy the claim of the complainant, in accordance with the provisions of the statutes of Ohio. A bill in eqnity cannot be maintained by a creditor to enforce the liability of a stockholder in Ii corporation organized under the laws of another state. In Post v. Railroad Co., 144 Mass. 341, 345,11 N. E. 546, Chief Justice Field said:
"This court does not take jurisdiction of a suit to enforce the liability of iltockholders In a foreign corporation, not because it would be a suit to enforce a penalty, or a suit opposed to the pollcy of our laws, but because It is a suit against a foreign corporation which involves the between It and its stockholders, and In. which complete justice can only be done by the courts of the jurisdiction where the corporation was created. - - - If an assessment Is to be laid upon the members or stockholders, or a contribution enrorced from them, according to the law of the state under which the corporation Is created, the courts of that state alone can afford complete and effectual judicial rellef."
There is another ground upon which the demurrer in this case is well taken,. namely, that the Ohio corporation. is a necessary party. The supreme court of Ohio has held that in suits of this character the rorporation "ought to have been mnl1e a party." Umstead T. Buskirk, 17 Ohio St. 113, 118. Demurrel's sustained.
TILLINGHAST v. BAtLEY et a1.
(CircuIt Court, S. D. Ohio, ·W. D. No. 4,940.
November 29, 1897.)
NATIONAL, BANKS-INCREASE OF STOCK-CONCLUSIVENESS OF COMPTROLLER'S CERTIFICATE.
The certificate of the comptroller of the currency, approving an increase of the capital stock of a national bank, Is conclusive of the existence of the facts authorizing such certificate, and a SUbscriber. to the stock cannot question its validity. ' . " , I. ' . .
Subscribers to a duly-imthorfzed increased issue of stock by a national bank, who accept certificates therefor, vote the stock by proxy,and take dividends thereon, cann,ot question the validity of such stock, as against the receiver, . after the bank has become insolvent. . ', '.
SAME-STOCKHOLDERS-ESTOPI'ELTO QUESTION VALIDITY OF STOCK.
Bill by Phillip Tillinghast,. against ;Bailey, .Jr.. and others, as stockholders in a natIOnal , John W. Herron ,and WID. Q. Herron, for complainant. J. C. Harper, F. B. James,andOscarF. Davisson, for respondents. , G1ARK, D,ist,rict Judge. .IJ?, tpc view I take of this I do not deem it nCGessary to discuss the various phases of this evidence. ,space...As couns.elin the To do so would case, are perfectly familiar. ,With ti,ieevidence so far as it affects the be determined, it ;wQuldbe. of no service to do .more than to state: in the way, my conclufacts, disclosed. bJ; .therecord, anq. the law applicable sions upon to such facts. ',L'wo ,propositions ll.re mainly. relied ()q :for the complainant"either of which, if will dispose of the case without entering at large upon the facts in the case. It is insisted for the the of the comptroller of the currency 'authorizing tpe increase, of stock to which the defendants were subscribers, except two, was the final act necessary to make the increase valid, and that thiscertificate'is conclusive on the defendants, and that they ClUlnot, as a matter of);:tw, go behind the certificate .for the pur:pose of making any: to whether the facts on' wbiq}:l the comptroller was by law authorized to give his certificate existed; and,second, that, upon the facts:of the case, :the' def ndants are as .to creditOl:,'s ,of theIJanking ,aE\spciation, in whose interest tbis suit is from question on the and yalidity increase of stoc!c' cer.tjfied to by ... ,The' secp,nd proposition would"Qf. course, require 1m' exainliultioninto thf?tm;th: oftpefactl!!l allegfdascqnstjtuting the true ground of the estoppel claimed. I turn, then, for a moment to the contention that the certificate of the comptroller is conclusive of the facts necessary to be ascertained and to authorize his certificate. It is now well settled that the action of the comptroller in determining that such facts and conditions exist as authorize the appointment of a receiver for a national banking association is conclusive in all subsequent legal proceedings based upon his action and decision in that respect. So, too, bis determination that it is