So it can

filed was attached to the motion, and set forth that Philip Potter was a stockholder in the American Loan & Trust Company; that the petitioner was advised that the stockholders of that corporation were liable under the Constitution of this state in an amount equal to the par value of the stock held by them; and that the receiver, for the reason that he was a stockholder, was not a fit person to enforce such liability. It was prayed by the petition that the receiver be removed, and a disinterested person be appointed in his place, and that the court proceed to determine the liability of the stockholders of the corporation in accordance with the facts set forth therein. It appears from the evidence that the question of the liability of the stockholders, which is contended for by the plaintiffs in this action, was argued and discussed at least at some length on the hearing. The court, however, overruled the motion, and denied the bank the right to file its said petition. So it may be said that, instead of allowing that matter to be made an issue in the action, the court refused to permit the same, or to allow the question to be litigated in that proceeding. not be claimed by the appellants that thus far the proceedings in the Circuit Court amounted to an adjudication of the question as to whether or not the American Loan & Trust Company was a banking institution. At the time of the filing of this motion none of the plaintiffs had presented or proved their claims against the trust company. They had not been made parties to the suit, and, aside from recognizing the proceedings by taking receivers' certificates for the amount of their claims, had made no appearance in the case. It further appears that when the question of the discharge of the receiver came up the . plaintiffs, or at least some of them, appeared, and by motion objected to his discharge, and assigned as one of the reasons therefor that the loan and trust company was a banking institution, and that its stockholders had incurred the double liability sought to be enforced in this action, and again asked that the receivership be continued, and that a disinterested person be appointed receiver to take the proper proceedings to enforce such liability. It is true that on the hearing of this motion the question was again argued to some extent, but the result of the matter was that the motion was overruled, that plaintiffs were denied the right to file petitions of intervention, and thus raise and litigate that question, and the receiver was discharged. The court, however, did not dismiss the action, but continued it for the sole purpose of allowing the plaintiffs to prove and establish the amount of their claims against the corporation. In our former opinion it is said, regarding this contention: "That the motion seems to have presented the single question of removing the receiver and appointing another, who was not a stockholder in the corporation. It is true that the

petition, tendered with the motion, foreshadowed the desire to have proceedings to enforce the liability of the stockholders instituted in a proper manner by a substituted receiver. But it cannot be successfully contended that the question of the liability of the stockholders was presented to the court for adjudication by this motion. The exact amounts due from the corporation to its various and numerous creditors was not judicially determined at that time. Plaintiffs had not either proven their claims before the receiver or obtained judgment thereon, and were not then in a position to ask the enforcement of the stockholders' liability." The ruling on this motion was simply on the question as to whether the then acting receiver should be discharged, and one appointed who should in no way be disqualified, by reason of adverse interests, to enforce the stockholders' liability. The same may be said as to the objections to the final discharge of the receiver. The question of the stockholders' liability was not then in issue, but was one which might have been put in issue had the objections been sustained and leave given the plaintiffs to file their petition.

To show that the liability of the stockholders was in fact litigated, the appellants called the district judge before whom the federal court proceedings were had as a witness. His testimony shows that the matter of the constitutional liability of the stockholders was argued, and to some extent considered; that it was his opinion that the corporation was not a banking institution, and that such view of the case was one of the considerations which moved him to overrule the motion and objections and deny the plaintiff's herein the right to file their petitions and litigate that question. It is also shown by his evidence that the case had been pending in his court for many years; that he desired to have an immediate and final disposition of it, and therefore overruled the motion and objections, and discharged the receiver. From a fair consideration of all of the evidence, it seems clear that the proceedings in that case do not constitute a bar to the prosecution of this action. The rule is well settled that the determination of a motion or a summary application is not res judicata, so as to prevent the parties from drawing the same matters in question again in the more regular form of an action. Heidel v. Benedict (Minn.) 63 N. W. 490, 31 L. R. A. 422, 52 Am. St. Rep. 592; Kanne v. Minneapolis & St. Louis R. R. Co., 33 Minn. 419, 23 N. W. 854; Simson v. Hart, 14 Johns. 63, 75; Freeman on Judgments, §§ 325, 326; Black on Judgments, § 689.

It is also contended that the plaintiffs herein had the right to intervene in the Circuit Court, and present for determination in that action the question of the stockholders' liability, and that, having failed to do so, they are estopped to present the matter in this proceeding. As was said in our former opin

ion: "We are not prepared to carry the rule to the extent sought by counsel. The receiver appointed by the Circuit Court for the trust company was authorized and directed to collect and convert into money the assets of the corporation. He took the place of the regularly constituted officers of the corporation, and had the same right to proceed against any of the stockholders that the officers of the corporation had. He could have proceeded against any of the stockholders for the collection of any balance remaining due from them to the corporation on subscriptions for stock, and could have collected any assessments legally made against the stockholders. In short, it was his duty, under the directions of the court, to convert all the assets of the corporation into such form as would enable them to be used for the satisfaction of the debts existing against the corporation. The liability of the stockholders created by the Constitution was not one existing in favor of the corporation, but in favor of its creditors." It is clear that this provision of the Constitution does not increase the capital stock or the financial resources of the corporation. Its only object is to provide an additional fund for the security of its creditors. This double liability is placed upon the stockholders solely for the benefit of the company's creditors. The officers and agents of the corporation cannot dispose of or control the fund thus created. They cannot collect it by assessment upon the shareholders, nor can they assign it to a trustee for the benefit of creditors, even though the corporation be insolvent. Thomp. on Corps. § 3560; Cook, Stockh. Corp. Law, § 218. In Runner v. Dwiggins, 147 Ind. 238, 46 N. E. 580, 36 L. R. A. 645, the court said: "Certainly it cannot be asserted with any reasonable support that this peculiar liability imposed by the statute upon those who become stockholders of a banking association organized under the existing law is in any sense an asset, right, or interest of the bank, which it, as an insolvent debtor, can by its deed of assignment pass to the assignee, or in any manner vest the enforcement thereof in him. In the absence of some statutory provision conferring the right, neither the corporation, nor its assignee, nor its receiver can enforce such ! a liability as that in question." It has been held, however, that, notwithstanding this liability was a subject over which the receiver ordinarily had no jurisdiction, a proceeding to enforce this liability might very properly be instituted by a receiver appointed by the court for that special purpose, or that the action may be maintained by one creditor for himself and on behalf of all others. Without doubt the receiver appointed by the Circuit Court for the trust company, after the debts against the corporation had been judicially ascertained and its property exhausted, could have proceeded to enforce the stockholders' liability in question herein if he had been directed to do so by the court. But in that

event it would have been necessary to remove the then acting receiver and appoint a disinterested person in his stead. This the court refused to do. And it is sufficient to say that the plaintiffs herein are not estopped to litigate the questions involved in this action by reason of the proceedings in the case in the federal court.

For the foregoing reasons, the judgment of the district court is right, and is therefore affirmed.

STATE V. CHAMBERLAIN BANKING HOUSE OF TECUMSEH. CAMPBELL v. NOYES, NORMAN & CO. et al. SAME v. KEMPER, HUNDLEY & McDONALD DRY GOODS CO. et al.*

(Supreme Court of Nebraska. June 9, 1904.) DECREE-CONSTRUCTION-LIEN.

1. A decree wherein a party is directed to pay a specific fund in his hands into court for distribution among claimants thereto will not be held to be a lien upon the real estate of such party in favor of the claimants, unless it is provided by the decree that the claimants recover of the party holding the fund, and that in default of payment execution may issue.

2. Creditors of an insolvent debtor filed a bill against the debtor, joining with him as defendant a bank to whom the debtor was alleged to have made a fraudulent transfer of chattels, the

object of the bill being to cancel the mortgage and subject the fund created by the sale of the chattels to their claims. The decree canceled the mortgage and ordered the bank to pay the fund into court. Held, that the decree did not constitute a lien on the real estate of the bank. (Syllabus by the Court.)

Commissioners' Opinion.

Department No.

3. Error to District Court, Johnson County; Stull, Judge.

Action by the state against the Chamberlain Banking House of Tecumseh. From an order of the court allowing certain creditors preferred liens on money in the hands of William A. Campbell, its receiver, he brings error. Reversed.

L. C. Chapman and George A. Adams, for W. A. Campbell. S. P. Davidson and Hugh La Master, for Noyes, Norman & Co. and others. Geo. Adams, for Kemper, Hundley & McDonald Dry Goods Co. and others.

KIRKPATRICK, C. This case presents for determination a contest between plaintiff in error, William A. Campbell, receiver of the Chamberlain Banking House, and representing its general creditors, and defendants in error, who claim a preferred lien upon certain money in the hands of the receiver, realized from the sale of the real estate of the bank, consisting of the banking house and the lot upon which it is situated. The banking house, hereinafter called the "Bank," is insolvent, and only a small per cent. of its liabilities can be paid. The trial court awarded defendants in error a preference over the general creditors, and the receiver prosecutes error to this court.

*Rehearing denied October 18, 1904.

In order that a clear understanding may be had of the questions presented by the record, it will be necessary to give a brief his tory of the transactions leading up to the entry of the judgment complained of. In the year 1895 Renshaw & Co. were engaged in the mercantile business at Crab Orchard, in Johnson county. At that time they were indebted to defendants in error, who are wholesalers, for goods. They were also indebted to the bank in a sum amounting to about $2,681. On November 6, 1895. Renshaw & Co. executed a mortgage to the bank to secure the amount due it, and the bank immediately took possession of the stock of goods, and thereafter advertised the goods and sold them under its mortgage. Soon after the bank obtained its mortgage and took possession of the goods, the various defendants in error commenced actions in the county court of Johnson county against Renshaw & Co., prosecuted them to judgment, procured the issuance of executions, which were returned unsatisfied, and thereafter procured the bank to be garnished. The bank answered in the garnishment proceedings, denying that it was indebted to Renshaw & Co. The defendants in error generally took exceptions to the answer of the bank. None of the judgments obtained by defendants in error in the county court were ever transcripted to the district court. On June 1, 1896, the creditors of Renshaw & Co., who had obtained their judgments in the county court, defendants in error herein, united in a creditors' bill asking to have the mortgage which Renshaw & Co. had executed to the bank declared fraudulent and void, and to require it to pay the money which it had realized from the sale of the stock of goods of Renshaw & Co. into court, to be applied in satisfaction of the judgments obtained in the county court. The bank answered, setting up the bona fides of its mortgage. Trial was had, and on November 8, 1900, a decree was entered, holding that the mortgage in controversy was fraudulent and void, and ordering the bank to pay to the Iclerk of the court for the benefit of defendants in error, plaintiffs in the creditors' bill suit, the sum of $3,472.73, being the value of the goods sold by the bank under its mortgage, with interest thereon up to the date of the decree. The bank prosecuted error proceedings from the decree so entered to this court, where the decree was affirmed. 92 N. W. 172, 175. In the meantime the bank had become insolvent, and on September 11, 1902, plaintiff in error was appointed and qualified as receiver, and took possession of all the property of the bank. Thereupon, and on January 23, 1903, defendants in error commenced this proceeding against the bank, asking that they be allowed a preferred claim for the amount which the district court, in the decree of November 8, 1900, directed the bank to pay to the clerk of the court for the satisfaction of the county court judgments, upon the ground that the decree

of November 8, 1900, was of such a character as to become a lien upon the real estate of the bank, and thus make the claims of defendants in error superior to that of the general creditors. Plaintiff in error, as receiver, resisted this application, claiming that the decree of November 8, 1900, was not a lien upon the real estate of the bank. The trial court found against the receiver, and adjudged the claims of defendants in error prior liens upon the fund, to be applied pro rata upon their several county court judgments. The correctness of this judgment of the trial court is the question presented for determination in this case.

Before the trial of the case, the receiver, by order of the court, sold the real estate of the bank, consisting of the banking house and the lot upon which it stood. Defendants in error objected to the confirmation of the sale, and it was thereupon agreed between all parties that the sale should be confirmed, and the money remained in the hands of the receiver, pending the final determination of this case. Defendants in error seem not to attach importance to the fact that garnishment was had upon the bank, further than to contend that the creditors' bill to set aside the mortgage given by Renshaw & Co. to the bank was more than a creditors' bill, in that it was in fact a suit against the garnishee because of an unsatisfactory answer. The controlling question in the case, however, seems to be whether the decree of November 8, 1900, is of such a character as to become a lien on the real estate of the bank.

For the purpose of ascertaining the full import of the judgment under consideration, it will be convenient to quote at some length from both the petition of defendants in error and the judgment itself. From the former we will quote the following: "Wherefore these plaintiff's pray that an account may be taken of the amount due each of said plaintiffs upon its judgment against said F. D. Renshaw & Co.; that it may be found, adjudged, and decreed that the said plaintiffs, and each of them, obtain a lien upon the goods of the said F. D. Renshaw & Co. so taken possession of by the said Chamberlain Banking House, and the proceeds of said goods, and that said liens are still valid and subsisting and binding upon said goods and the proceeds of the same in the possession of the defendant bank, and prior to all other liens thereon; that said chattel mortgage so made to the Chamberlain Banking House be found and decreed to be fraudulent and void as to these plaintiffs and each of them, and that the said mortgage may be canceled and set aside, and out of the proceeds of the sale of said goods the said Chamberlain Banking House may be ordered and decreed to pay to these plaintiffs, or into this court for them, the amount of the respective claims against F. D. Renshaw; and for such other and further relief as may be just and equitable." From the decree it will

only be necessary to quote the following: "It is therefore considered, ordered, adjudged, and decreed that the chattel mortgage executed by F. D. Renshaw & Co. to the Chamberlain Banking House on the 6th day of November, 1895, to secure the payment of $2,681.23, be and the same is declared to be absolutely null and void, and that the defendant, the Chamberlain Banking House, pay to the clerk of this court the said sum of $2,681.23, together with interest at the rate of 7 per cent. per annum from the 6th day of November, 1895, being a total sum of $3,472.73, including interest, and that said sums be distributed pro rata to the several plaintiffs in this action; that is to say," etc. It will be observed that in the prayer of their petition defendants in error sought only to have the chattel mortgage declared to be a nullity, under and by virtue of which the bank should obtain no rights or claim to the goods of the Renshaw Company or any moneys realized from the sale of such goods, and, further, to have the goods or the money realized from the sale thereof by the bank made available for the satisfaction of their liens and claims against Renshaw & Co. From the judgment it is clear that the court attempted to, and, we think, did, give them all that they asked; that is to say, the mortgage was nullified and canceled, so that any rights under it conveyed to the bank were abolished; and, as the goods were converted into money, the decree directs that the money be paid into the court for distribution among defendants in error.

We have, then, a decree by which a certain instrument is canceled, the result of which presumably creates a fund, and thereupon a direction, to the party in whose possession the fund is, to pay it over. But there is no recital here that one party shall have and recover of the other a sum certain, and that in default of payment execution shall issue. It does not seem to us that the decree under consideration is one upon which an execution could have issued against the bank, to be levied, as in the case of an ordinary money judgment, upon any of its property, no more than an order issues to the bank to pay into the court a fund presumably in its hands. The decree clearly adjudicates that the bank has no claim or right to that fund; but we read this decree in vain for any intimation of an intention to render a general money judgment against the bank. We do not think we are now concerned with the question whether the court had jurisdiction to give judgment in favor of defendants in error against the bank for a specific sum of money, in default of payment of which, execution should issue. It is sufficient to say that defendants in error neither asked for such relief, nor did the court grant it. In order that defendants in error may now have the relief granted them by the lower court in the case at bar, it ought to be made to appear that the decree under consideration, as that

decree stood of record, would charge a prospective purchaser of the real estate of the bank that there was a valid and subsisting judgment against the bank, upon which an execution might issue. The view we entertain is that this decree would not constitute such notice. He who inquired would have ascertained that a certain chattel mortgage executed to the bank had been canceled, and that the bank's claim upon the fund created by its assumption of possession and sale of the mortgaged chattels had been adjudicated adversely to the bank, and that it had been directed by the order of the court to pay this fund into court for distribution among certain claimants thereof.

In view of what has been said, it follows that the judgment of the district court giving to the defendants in error a preference over the other creditors of the bank is wrong, and ought not to stand. It is therefore recommended that the judgment be reversed, and the cause remanded for further proceedings.

LETTON, C., concurs.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.

UNION PAC. R. CO. v. FICKENSCHER.* (Supreme Court of Nebraska. June 9, 1904.)

RAILROADS FIRES-PERSONAL INJURIES-EVIDENCE.

1. Evidence examined, and held not sufficient to support the verdict and judgment. (Syllabus by the Court.)

Commissioners' Opinion. Department No. 1. Error to District Court, Dawson County; Sullivan, Judge.

Action by John Fickenscher against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

John N. Baldwin, Edson Rich, E. A. Cook, and John M. Ellingsworth, for plaintiff in error. Warrington & Stewart, Geo. W. Thomas, and H. M. Sinclair, for defendant in error.

DAY, C. This action was brought by John Fickenscher in the district court of Dawson county against the Union Pacific Railway Company to recover damages sustained by him on account of having been burned in a prairie fire, which he alleged in his petition was started through the negligence of the railroad company. Upon the trial the plaintiff recovered a judgment for $1,175, to review which the defendant has brought error to this court.

It was contended upon the part of the defendant that the fire which it was alleged to have negligently set out never reached the point where the injury occurred, and that *Rehearing denied October 4, 1904.

the fire which burned the plaintiff was a fire which originated from unknown causes, and was driven down from the northwest by a heavy gale which was blowing from that direction at the time of the injury. The petition in error contains 63 assignments of error, but, in the view we have taken of the evidence, it seems unnecessary to consider any of the assignments of error except those relating to the sufficiency of the evidence to sustain the verdict and judgment. For the purpose of elucidating the opinion, we have attached a map showing the distances and relative positions of places mentioned in the opinion:

The record shows that about noon on April 16, 1899, a fire was discovered along defendant's right of way soon after a train on defendant's railroad had passed going west. The fire started in section 27, township 12, range 26, near the town of Vroman, and during the afternoon and evening burned in a northwesterly direction, and by dark it had reached Fosberg's place, some seven miles north and a mile and a half west of the point where it started. During the afternoon and evening a light wind was blowing slightly west of north. The country over which the fire spread, and in fact all of the country in that vicinity north of the railroad, is a