Finch, Van Slyck & McConville v. Le Sueur County Co-operative Co.

159 N.W. 826, 134 Minn. 376, 1916 Minn. LEXIS 662

• Court: Supreme Court of Minnesota
• Decided: November 10, 1916
• Docket: Nos. 19,926—(75)
• Status: Published

Opinion

Brown, O. J.

This proceeding was brought to enforce the statutory liability of the stockholders of the Le Sueur County Co-operative Association, an insolvent mercantile corporation. The matter was before us on a former appeal ivhen various questions were disposed of, including an order assessing the stock 100 per ’cent of its par value. 132 Minn. 9, 155 N. W. 754. During the pendency of the former appeal the court below made an order allowing a large number of claims against the corporation, which order was merged in a judgment of November 3, 1915. The opinion on the former appeal was filed on January 7, 1916. On February 12, 1916, one of the stockholders of the corporation moved the court, on notice served upon the receiver, to set aside and vacate the judgment allowing claims, and for an order fixing a date upon which a rehearing might be-had upon all the claims so allowed. The motion was supported by affidavits, and was opposed by plaintiff, Finch, Yan Slyck & McConville, a. corporation, and by the receiver. The motion was granted, and a time and place fixed for the rehearing of such claims, and from the order plaintiff and the receiver separately appealed.

Kespondent’s motion to dismiss both appeals must be granted.

1. Plaintiff’s claim, the basis of the proceeding, is founded upon a judgment which was affirmed by this court in Finch, Van Slyck & McConville v. Le Sueur Co. Co-op. Co. 128 Minn. 73, 150 N. W. 226. The judgment is conclusive of plaintiff’s claim, not only against the corporation, but also its stockholders. Oswald v. Minneapolis Times Co. 65 Minn. 249, 68 N. W. 15. This is conceded by respondent. Its claim therefore is not affected by the order, plaintiff is not an aggrieved party and is without the necessary foundation in support of its appeal. It is clear that it cannot contest the validity of the order as to other creditors, for it has no interest in their claims. Its appeal will therefore be dismissed.

2. It seems equally clear that the receiver has no interest to protect by opposing the rehearing order, and is therefore not aggrieved and cannot appeal. The receiver in proceedings of this kind represents the court in the administration of the trust imposed upon him, and stands indifferent' as between the creditors asserting claims against the insolvent. He may in some respect represent the collective body of creditors in the protection of rights common to all, but in no case can he become an advocate in support of the allowance of claims presented by them. He may oppose fictitious or fraudulent claims, but it is clear that he cannot champion the claims of creditors, either singly or collectively. . For this reason the rehearing order does not concern him, nor involve any legal' or other duty imposed upon him in the administration of the trust. If the order had opened the judgment allowing claims as to one, two or three creditors, and directed a rehearing thereon, the receiver manifestly could not be heard to complain. The fact that the order in question applies to all the creditors does not change the situation. And not being interested or aggrieved by the order he has no right of appeal. Medynski v. Theiss, 36 Ore. 397, 59 Pac. 871; Bosworth v. Terminal R. Assn. 80 Fed. 969, 26 C. C. A. 279; Bates v. Ryberg, 40 Cal. 463; State v. People’s State Bank, 22 N. D. 583, 135 N. W. 196; McColgan v. McLaughlin, 58 Md. 499; Knabe v. Johnson, 107 Md. 616, 69 Atl. 420; Dorsey v. Sibert, 93 Ala. 312, 9 South. 288.

Both appeals must therefore be dismissed. This precludes the consideration of any question involved on the record, either as to the sufficiency of the notice of the application for a vacation of the order allowing claims, or in any other respect.

Appeals dismissed.