Brown v. Brink

Non val, J.

This action was instituted by tbe receiver of tbe Bank of Rusbville to enforce stockholders’ individual liability for tbe debts of tbe bank. Willis E. Brown, a creditor of tbe bank, sought to intervene, and bis application therefor was denied, and upon stipulation of tbe parties a judgment was rendered in favor of tbe receiver and against tbe defendants for tbe sum of $2,600. Brown has prosecuted a petition in error.

A single question is presented for tbe consideration of this court, namely, Did tbe. court below err in refusing to permit Brown to intervene? We are all of tbe opinion that tbe answer must be in the negative. It has been judicially determined that an action like tbe present one must be brought for tbe benefit of all tbe creditors of tbe corporation, and when a receiver has been appointed tbe suit should be prosecuted in bis name. (Farmers Loan & Trust Co. v. Funk, 49 Neb. 353 ; German Nat. Bank of Lincoln v. Farmers & Merchants Bank of Holstein, 54 Neb. 593 .) A receiver for the Bank of Rusbville bad been appointed, and be instituted suit against tbe stockholders to charge them individually for tbe debts of tbe corporation, and tbe creditor could not maintain an independent action to enforce tbe same liability against defendants. If Brown, therefore, could not in bis own right have instituted a separate suit, manifestly be could not intervene in tbe one brought by tbe receiver, — at least, unless it was shown that tbe receiver was either failing to prosecute tbe cause or was in some way disregarding or violating tbe duties of his trust. Tbe petition of intervention contains no such averment, but alleges substantially tbe same facts as are set forth in tbe petition of tbe receiver, with tbe further allegation that Brown, is a creditor of tbe bank and that bis claim has been allowed. Moreover, this record discloses that in tbe case in which Mr. Brink was. appointed receiver of tbe Bank of Rusbville be, as such receiver, was ordered and directed to compromise *608 the present suit upon certain terms, and that the judgment herein was rendered in pursuance of such settlement. In view of the order of settlement entered in the receivership case we are unable to . see how Mr. Brown could have been prejudiced by the denial of his application to intervene herein, since, liad his petition for intervention been allowed, it would not have prevented the rendition of the same judgment which was subsequently entered. Whether the court rightfully ordered the receiver to compromise the right of action against the stockholders is not presented by this record.

Affirmed.