Opinion of the Court--CORSON, P. J. [19 S. D. ordinary course of its business. Richman v. Irons, 121 U. S. 27; Schrader v. Manufacturer's Bank, 133 U. S. 67; Ward v. Joslin, 186 U. S. 142; Ward v. Joslin, 100 Fed. 676. CORSON, P. J. This is an appeal by the plaintiff from an order sustaining the defendants' demurrer to its complaint. The complaint states, in substance, that the plaintiff is a corporation duly organized under and by virtue of the banking laws of the United States; that the Minnekahta State Bank was in May, 1899, and for years prior thereto, a banking association or corporation organized and existing under and by virtue of the laws of the State of South Dakota, and doing business in the city of Hot Springs; that said bank was organized with a capital stock of $25,000, divided into 250 shares of the par value of $100; that defendant James Halley was on, prior, and subsequent to said date a stockholder in said state bank, owning and having on the records of said bank 20 shares of stock of the par value of $2,000; that the plaintiff is the owner and holder of a judgment against said state bank, duly entered in the circuit court of Fall River county on May 6, 1899, for the sum of over $7,000, and that no part of the same had been paid, and that the whole thereof is due and owing to this plaintiff with interest thereon; that said state bank is, and has been for years past, insolvent, and without assets, and that no part of said judgment is collectible from said bank on execution or otherwise, and the plaintiff demands judgment for the sum of $2,000 and its costs. The defendant Halley interposed a demurrer to said complaint on the grounds (1) that there is a defect of parties plaintiff; (2) that there is a defect of parties defendant; (3) that the complaint does not state facts sufficient July, 1905] Opinion of the Court-CORSON, P. J. to constitute a cause of action. This demurrer was sustained, and from the order sustaining the same this appeal was taken. It is contended by the respondent in support of the ruling of the court below (1) that a suit at law by a single creditor against one or more shareholders of an insolvent corporation cannot be maintained in this state, and that the only remedy in such a case is a bill in equity, in which all the creditors, or one in behalf of all, should be made plaintiff, and all persons owning stock in the bank should be made defendants; (2) that the complaint does not state facts sufficient to constitute a cause of action, in that it does not appear from the complaint what was the amount of the outstanding indebtedness of the bank and the names of the stockholders, and the amount due from each, and that these allegations are essential in a complaint to constitute a cause of action; (3) that the plaintiff can only recover upon the original cause of action, and not upon the judgment. The appellant, on the other hand, contends that neither the other creditors nor the other stockholders were necessary parties to the action; that it was not necessary in the complaint to set forth the amount of the indebtedness of the bank to parties other than the plaintiff, or the amount of stock held by other stockholders; and that the indebtedness by judgment comes within the provisions of the law authorizing the recovery of money from stockholders of a state bank. As it does not affirmatively appear from the complaint that there are other creditors of the insolvent corporation or other solvent stockholders who have not paid the amount due from them as such stockholders, the contention that there is a defect of parties plaintiff and parties defendant is not presented by the demurrer, and the question of the defect of parties cannot, therefore, Opinion of the Court-CORSON, P. J. [19 S. D. be considered upon this appeal. The third ground of the demurrer, namely, that the complaint does not state facts sufficient to constitute a cause of action is also in our opinion untenable. Section 864 of the Civil Code provides as follows: "The shareholders of every association organized under this chapter shall be individually responsible, equally and ratably and not one for the other, for all contracts, debts and engagements of such association made or entered into to the extent of the amount of his stock therein, at the par value thereof, in addition to the amount invested in and due on such shares." This section was evidently adopted to carry into effect section 3 of article 18 of the State Constitution, which provides as fol lows: "The shareholders or stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares of stock; and such individual liabilities shall continue for one year after any transfer or sale of stock by any stockholder or stockholders." It will be observed that the section of the Constitution is broader and more comprehensive than the section of the statute above quoted, in that it provides that "stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares of stock." The insertion, therefore, of the clause in the statute, "shall be equally and ratably and not one for the other," must be construed so as to make it accord with the constitutional provision above quoted. The provisions July, 1905] Opinion of the Court-CORSON, P. J. of the Constitution relating to the liability of stockholders in a banking corporation are self executing, and hence, under the allegations of the complaint, the defendant Halley was absolutely liable to the extent of the par value of his shares of stock for any indebtedness incurred by the banking corporation, and as it appears from the complaint that the plaintiff has a judgment against the banking association, and that the said association is insolvent, and has no assets upon which an execution can be levied; that the judgment is unpaid; and that Halley is a stockholder in said bauk, owning 20 shares thereof of the par value of $2,000—we are of the opinion that the complaint does state facts sufficient to constitute a cause of action as against him. What Halley's rights may be as to contribution from the other stockholders it is not now necessary to decide, as that question is not before us on this appeal. The contention of the respondent that the action should be by a suit in equity, in which the amount of indebtedness must be set forth, and the names and amount of stock held by the respective stockholders, is not tenable, as no provision is made in the Code for such an action, and this court cannot, without trenching upon the powers of the Legislature require the institution of such an action. Undoubtedly, it would be competent for the lawmaking power to prescribe a method of procedure by which an insolvent state bank could be placed in the hands of a receiver with authority in the bank examiner to levy the requisite assessments in order to pay off the indebtedness of the banking association, and to authorize the bank examiner or receiver to enforce the collection of such assessments by a suit in equity, in which the right of creditors and stockholders might be carefully guarded. But in the absence 19 S. D.-31 Opinion of the Court-CORSON, P. J. [19 S. D. of such provisions this court cannot prescribe such a procedure or require a creditor of a banking association to assume the duty of settling up the affairs of such insolvent banking association by a bill in equity in order to adjust the rights of the creditors and stockholders. The Constitution having made the stockholder absolutely liable to the extent of the par value of his stock for any indebtedness of the association, he may be required to pay the amount to any creditor who may first bring an action for the same, and he can only relieve himself from liability when he has satisfied a creditor or creditors of the bank to the extent of the par value of his stock. There seems to be a conflict in the authorities upon this question, but this conflict arises mainly from the dissimilarity in the statutes of the various states relating to the liability of stockholders in a banking association. The decisions from the State of California referred to by the respondent in his brief are clearly not in point under our statute, as the provisions of the California Code in reference to liability of stockholders are entirely dif ferent from those imposed by our Constitution and the law of this state. In view of this conflict in the authorities, we are of the opinion that this court cannot impose upon a creditor the duty suggested by respondent, and the conclusion reached by us is that a creditor may proceed against one or more of the stockholders to recover the amount of his indebtedness in an action at law. The contention of the respondent that the plaintiff should have brought its action upon its original cause of action, and not upon the judgment, is also untenable. The judgment is prima facie evidence, at least, as against a stockholder of the amount due from the banking association, as a judgment comes |