Warner v. Imbeau

*419 The opinion of the court was delivered b> Ellis, J. :

The claim that section 26, chapter 43, Laws of 1891 (Gen. Stat. 1897, ch. 18, §47), inhibits-the bringing of an action against a bank after the appointment of a receiver to wind up its affairs, is untenable. The general rule is that so long as the corporation over which a receiver has been appointed has not been dissolved, and no order of injunction exists restraining suits against it,, it may be sued and defend in its own name. (20 A. & E. Encycl. of L. 254, and cases cited under subtitle “Corporations”; High, Rec. §258; St. Jos. & D. C. Rld. Co. v. Smith, Treasurer, 19 Kan. 225 ; Bank v. Sewing Society, 28 id. 303 ; Sleeper v. Norris, 59 id. 555, 53 Pac. 757 .)

The amendment made to the return accorded with the facts, and however irregular the rendition of the judgment on the original return or the making of the qx parte amendment thereto may have been, the judgment was not void for either reason, nor were the orders for execution void, because only one motion was filed for execution against several of the stockholders of the bank. The nptices served on the stock-, holders were separate, and the mere fact that the motion asked for the same relief against other stockholders than the one named in a given notice could nowise prejudice his interest. It was, in effect, a misjoinder of parties defendant, and was waived by failure to appear and plead. The case of National Bank v. Magnuson, 57 Kan. 573 , 48 Pac. 518 , to which we are cited, is not in point, and certainly does not conflict in any manner with the position here taken.

That a return of nulla bona upon an execution issued *420 out of a justice’s court is sufficient to give jurisdiction to proceed against stockholders has been unequivocally decided by the supreme court of Michigan under a statute and method of proceeding which are analogous to ours. (Voight v. Dregge, 97 Mich. 322 , 56 N. W. 557 . See, also, Sleeper v. Norris, supra.)

As the plaintiffs in error admit that notices of the motion for execution were in fact served on them, respectively, as to this action it is wholly unimportant whether a return, of service thereof was properly made or made at all. They may not enjoin the enforcement of an order based upon a sufficient notice actually served, because of an informality in the official signature of the officer who served it. Before final determination of the matters pending and dependent upon the notice, such return could have been amended in any case, and the failure of the deputy to affix the name of his principal was a mere irregularity. (Hill v. Gordon, 45 Fed. 276 .)

It is true that chapter 47 of the Laws of 1897 (Gen. Stat. 1901, §§407-470), which took effect March 11, 1897, repealed the banking law of 1891, under which these proceedings were commenced and were then pending, and that fact alone constitutes a sufficient answer to the contention of counsel that section 55 of the later act (Gen. Stat. 1891, § 461) is applicable to this case, and renders all things done therein subsequently to March 11, 1897, void.

“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under 'or by virtue of the statute repealed.” (Gen. Stat. 1901, §7342.)

As above said, these proceedings were “com *421 menced,” and an order for execution had already been made, before the repealing statute took effect. Whether said section 55 would apply to debts incurred before its passage we need not-decide, but, as bearing in some measure-upon the question, reference is made to the case of McDermott v. Halleck, 61 Kan. 486 , 59 Pac. 1074 .

We conclude, then, that the several matters complained of by plaintiffs in error are but irregularities, and that none of them alone, nor all of them together, render void the , judgment or execution sought to be enjoined. If the plaintiffs in error have any defense whatever to the proceedings had to charge them as stockholders, they did not avail themselves of the opportunity afforded to establish the same, and they do not, even in this action, aver the existence of any facts which would have avoided their liability. For that reason, the court below ought to have denied to them the relief asked.

“A general rule underlying the entire jurisdiction of equity to restrain proceedings at law is, that where the person aggrieved has had an opportunity of interposing his defense at law and has had his day in court, but has failed through carelessness or inadvertence to avail himself of the opportunity of interposing such defense at law, he cannot afterwards make it the ground for relief in equity, and is barred from enjoining proceedings under the judgment. It is not the policy of the law to permit persons to slumber upon their rights when they have an opportunity to assert them in a court of law, and afterwards to permit their assertion in a court of equity. In the absence, therefore, of any suggestion of fraud, accident, mistake, or surprise, and when no good reason is shown why the defense was not made at law, the injunction will not be allowed, where it is not obviously against conscience to enforce the judgment.” (High, Inj. § 165.)

*422 Although counsel for plaintiffs in error have ably and forcibly presented the several allegations of error above referred to, we are constrained to regard the adjudication of the court below as right. The judgment is affirmed.

Smith, Cunningham, JJ., concurring.