Kennedy v. Citizens' National Bank

Ladd, J.

*564

i. banks and payment'of banlfj brestockiioide™

*563 I. The defendant bank, as was its duty, •paid the taxes levied against the shares of stock from 1892 to 1898, inclusive, hut neglected to retain the respective *564 amounts from the dividends. subsequently declared, or to enforce the lien thereof against the stock, as periMtted by statute. See section 819, Code 1873 (section 1325, Code 1897). No resolution by the board of directors was necessary, and none was adopted. Nothing in the record indicates whether any profits of individual stockholders were on hand, as alleged in the petition, and there is no pretense that a tax dividend was declared, as in Redhead v. Iowa National Bank, 127 Iowa, 572 . The taxes were paid by the bank, as agent of the stockholders, in pursuance of statutes so requiring; and under the Code of 1873 it had the right “ to retain so much of any dividend belonging to any shareholder as shall be necessary to pay any taxes levied upon his shares.”; and under the Code “ the corporation may recover from each stockholder his proportion of the taxes so paid, and shall have a lien on his stock and unpaid dividends therefor. If unpaid dividends are not sufScient to pay such tax, the corporation may enforce such lien on the stock by public sale of the same,” etc. These claims for the repayment of the taxes, then, were assets of the bank. It had the right to collect them the same as any other indebtedness owing it, and from its omission or neglect to do' so no liability in favor of any individual stockholder arose. As said, the debt belonged to the bank, and not to him, and under all the authorities he may not maintain an action thereon for his own benefit. Had the bank declined, upon demand, to enforce restitution of the taxes by it paid for the benefit of shareholders, possibly an action therefor might have been maintained in its behalf by a stockholder. See Dillon v. Lee, 110 Iowa, 156 ; 10 Cyc. 963 et seq. But no such demand was made, and, moreover, this action is against- the bank, and not the stockholders from whom the indebtedness is due. An individual stockholder has no more right to maintain an action for his shale of them than he would for money improvidently loaned or outstanding, because of the bank’s *565 omission or neglect to insist upon its payment. That such an action cannot be maintained is elementary. Helliwell on Stock and Stockholders, section 325; Lockhart v. Van Alstyne, 31 Mich. 76 ( 18 Am. Rep. 156 ); Goodwin v. Hardy, 57 Me. 143 ; Williston v. Railway, 13 Allen, 400 .

g Appealcratroíerfyremittitur. II. The trial judge declined to certify the cause for appeal, and appellee has moved for dismissal on the ground that the amount in controversy does not exceed $100. The petition claimed more, but on the day following the decision, construed on the former appeal not to constitute a judgment, ( 119 Iowa, 123 ), plaintiff filed a remittitur for all amounts claimed in his petition in excess of the amount found by the court to be due the plaintiff. Appellant rightly insists that this was after judgment had been rendered, and therefore too late. On June 13, 1904, the plaintiff filed his motion for judgment nunc pro tune, which was sustained, and judgment entered on the same day for “ the sum of $42.60, with interest thereon at the rate of 6 per cent, per annum from the 13th day of March, 1900, together-with costs of this action, taxed at-dollars; this judgment to have force and effect as though entered on the 8th day of March, 1900.” This fixed the time judgment was in fact rendered as definitely as though it actually had been spread, upon the records of the court on the last named date. In view of the judge’s memorandum, the accuracy of the entry may be doubted; but as plaintiff has not appealed, and defendant is content, the finding must be treated as a verity, and the filing of the soTcalled remittitur held to have been after judgment, and therefore too late to affect the amount in controversy

The motion to dismiss is overruled.— Reversed.