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eBook details

• Title: Home State Bank v. Swartz
• Author : Supreme Court of Montana
• Release Date : January 02, 1925
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

Attachment ? Banks and Banking ? Stockholders Statutory Liability ? Assessment ? Liability Contractual ? Defective Affidavit on Attachment ? Amendment. Banks and Banking ? Stockholders Statutory Liability Contractual in Nature. 1. If by statute a duty or liability is placed upon one as the result of his ownership in the shares of a banking corporation, such duty or liability is regarded as contractual in its nature. Contracts ? Existing Laws Become Part of. 2. Existing laws become a part of contracts to which they are applicable. Attachment ? Banks and Banking ? Stockholders Liability ? Implied Contract for Direct Payment of Money. 3. The double liability imposed by section 6,036, Revised Codes, as amended (Chap. 9, Laws of 1923), upon a stockholder in a - Page 426 state banking corporation is in its nature contractual, and in an action to collect an assessment made against him upon that liability, attachment lies as upon an implied contract for the direct payment of money. Same ? Power of Banks to Sell Stock of Stockholders on Failure to Pay Assessment in Effect a Lien on Stock. 4. The power given a state bank by section 6109d, added to the Revised Codes of 1921 by Chapter 90, Laws of 1923, page 243, to sell the stock of its stockholders upon impairment of its capital if the holders fail to pay the assessment levied upon it, constitutes a lien upon the stock, within the meaning of the attachment statute. Same ? Affidavit ? Insufficiency. 5. In an action by a state bank to recover a deficiency due on an assessment against a stockholder after a sale of the stock by it as provided in section 4 of Chapter 90, Laws of 1923 (sec. 6109d, p. 243), in which a writ of attachment was issued, the affidavit on attachment held defective for failure to allege, after setting forth that the amount due had not been secured by any mortgage, lien, etc., that "if originally so secured, such security has, without any act of the plaintiff, become valueless." Same ? Defective Affidavit ? Amendment. 6. Where, because of a defective affidavit on attachment, the writ should have been discharged (unless the trial court in furtherance of justice saw fit to permit the affidavit to be cured by amendment), and it is apparent that the defect is readily amendable and the amendment will be in furtherance of justice, the cause will be remanded with directions to discharge the attachment unless, within a stated time after remittitur filed, the plaintiff shall file an amended affidavit to meet the requirements of section 9257, Revised Codes of 1921.

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