Duncan v. State National Bank

85 Miss. 681

• Court: Mississippi Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Wihtfield, C. J.,

delivered the opinion of the court.

The point decided in this case when it was here before — see Bank v. Bank, 83 Miss., 610 (35 South. Rep., 569) — was simply that these appellees, being mere general creditors, could not complain for the stockholders or the directors that the assignment had been illegally executed. We held that general creditors had no standing in court to make such an attack if the stockholders and directors all assented to the assignment. That was all that was involved in the former decision. No attack was made in that case on the assignment, treating it as having been legally executed, for fraud or anything else which would have avoided an instrument once having had legal existence. The sole object of the attack was to show that the assignment had never had any legal existence, and our former holding was that these appellees, mere general creditors, could not pursue this remedy. It was not a remedy which was open to them, if the stockholders and directors assented. This being the case, the doctrine of election is not properly involved in this appeal, and we do not decide the question with respect to the consequenees of election to claim under or against an assignment. This case falls squarely within the principle of the cases of Conn v. Bernheimer, 67 Miss., 498 (7 South. Rep., 345); Tucker v. Wilson, 68 Miss., 693 (9 South. Rep., 898). In the former case Bernheimer employed the remedy of replevin, which was forbidden by the law, it being his duty to have interposed a claimant’s issue. The holding was that, since Bernheimer could not employ replevin, the doctrine of election had no application.

Affirmed.