{
  "id": 11271992,
  "name": "J. FRANK ALDRICH, Receiver, etc., Appellant, v. EDGAR M. YOUNG, Appellee",
  "name_abbreviation": "Aldrich v. Young",
  "decision_date": "1902-04-25",
  "docket_number": "No. 943",
  "first_page": "444",
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    "name": "Supreme Court of New Mexico"
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  "last_updated": "2023-07-14T19:33:31.770725+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Mills, C. J., McFie and Baker, JJ., concur.",
      "Parker, J. having tried the case below, did not participate in this decision."
    ],
    "parties": [
      "J. FRANK ALDRICH, Receiver, etc., Appellant, v. EDGAR M. YOUNG, Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION OP THE COURT.\nMcMILLAN, J.\nThis is an appeal from orders of the district court of the Third judicial district; first, vacating a former order of said court which struck out certain portions, of the plaintiff\u2019s answer; second, from an order overruling a demurrer by plaintiff to defendant\u2019s answer; and third, from an order of said conrt overruling plaintiff\u2019s motion to strike out certain portions of the plaintiff\u2019s answer.\nThese appeals being from interlocutory orders, this court is without jurisdiction to hear or determine such appeals, as decided by this court in the case of Jung v. Myer in an opinion this day handed down involving the identical question presented by the appeal herein.\nThe appeal should therefore he dismissed, the costs to be paid by the appellant, and it is so ordered.\nMills, C. J., McFie and Baker, JJ., concur.\nParker, J. having tried the case below, did not participate in this decision.",
        "type": "majority",
        "author": "McMILLAN, J."
      }
    ],
    "attorneys": [
      "Oscar A. Appel and R. M. Turner for appellant.",
      "Percy Wilson for appellea"
    ],
    "corrections": "",
    "head_matter": "[No. 943.\nApril 25, 1902.]\nJ. FRANK ALDRICH, Receiver, etc., Appellant, v. EDGAR M. YOUNG, Appellee.\nAppeal from the district court of Grant county, before Frank W. Parker, Associate Justice.\nAppeal dismissed.\nOscar A. Appel and R. M. Turner for appellant.\nThe time when and circumstances under which an assessment is necessary to be made against the stockholders of a National Bank, under sections 5151 and. 5234, Revised Statutes of the United States to enforce their personal liability for the purpose of paying its debts, as also the extent to which that liability may be enforced, are matters that rest solely in the discretion \u25a0of the comptroller of the currency of the United States.\nKennedy v. Gibson,- 8 Wall. 498; Casey v. Galli, 94 U. S. 673; Germania National Bank etc. v. Case, 99 U. S. 628.\nAnd the comptroller having decided these questions in favor of an assessment, and levied it, his action is con\u2022clusive and cannot be questioned in any litigation that may ensue to enforce the assessment.\nAuthorities last above cited.\nAnd this is true of the second and every subsequent assessment.\nU. S. v. Knox, 102 U. S. 422.\nRelief against an assessment made in contravention \u2022of law, can be had only by a proceeding instituted against the comptroller, as by injunction, to restrain enforcement of the assessment.\nUnited States v. Knox, supra.\nBut even such a proceeding is not maintainable against the receiver.\nJ. Prank Aldrich, Receiver, v. Campbell, 97 Fed. (C. C. A.) 663.\nNo defense that is valid or cognizable in a suit to. enforce an assessment is contained in an answer which sets forth that the assessment is made for a sum above the ratable share of each stockholder\u2019s liability, and that, if enforced, it will have the effect to compel the solvent stockholders to contribute above their ratable liability, to supply a deficiency arising from the failure to collect from insolvent stockholders their ratable \u00a1share of a previous assessment.\nReceiver v. Galli, 94 U. S. 680; J. Frank Aldrich v. Campbell, supra.\nPercy Wilson for appellea\nThis cause is not within the jurisdiction of this court because it is not here for a review of any judgment, order or decree which this court is authorized to review upon appeal or writ of error.\nActs of the Legislative Assembly of New Mexico of 1901, sec. 1, chapter 82, page 159.\nAn appellate court will upon its own motion dismiss an appeal where it has not jurisdiction, as one from a non-appealable order.\nEncy. PL and Pr., page 336 and note at page 339.\nThe individual liability of stockholders of national banks must be enforced equally and ratably upon all.\nUnited States v. Knox, 102 U. S. 422; Al-drich v. Campbell, 97 Fed. 663; Lease v. Bar-schall, 106 Fed. 762.\nThe comptroller enforces an assessment upon stock- \u2022 holders of an insolvent national bank through the receiver thereof, who is the proper person to bring suits. Kennedy v. Gibson, 8 Wallace 498.\nAnd as to the stockholders\u2019 right to make a defense in a suit by the receiver, see\nMoss v. Whitzel, 108 Fed. 579.\nA motion to strike is not the proper method by which to question the sufficiency of an answer in matters of substance.\n20 Ency. PI. and Pr. 988; 6 Ency. PI. and Pr. 346."
  },
  "file_name": "0444-01",
  "first_page_order": 462,
  "last_page_order": 465
}