Show I THf SUPRfMf COURT I DECISION I T OMAA lIRE INSURANCE CASE The Court Below Revered and a New Trial Gratatpha va the Southern Pacific In a opInion written by justIce nner yesterday and concurred in by Chief Justice Bartch and Justice Bas I kin of the supreme court in the case of Lodowicl 1 Crofoot receIver of the j Omaha FIre Insurace company ap pehlant vs George W Thatcher andS and-S T Josselyn it is held that the unpaid un-paid stock subscriptions of defendants and respondents constituted a trust fund against which the statute of him Itations does not bar the maintenance of an acton to recover the amount sued foe by the receiver I The statement of the case shows that on April 24 1889 Thatcher subscrIbed for 2500 worth of the Omaha FIre Insurance In-surance compays capita stock and paid 1250 In cash therefor the balance af the purchase price of his steele sub scrIpton beIng represented by a promissory prom-issory note given jointly by him and Josselyn to the Insurance company and due on demand On March 31 J897 the Insurance company became insolvent and a rCelv r was appointed who immediately im-mediately thereafter sued the makers of the note for the face of the obJga tonDemurring Demurring the defendants set up theit the cause of action was barred by the Utah statute of limitations and also by the Nebraska statute The demurrer de-murrer was sustained and from the judgment of the First district court the plaintiff appealed The supreme courts opInIon holds that the liability of the makers of the promissory note is governed by the laws of the state where the contract or note was made in this case In the state of Nebraska Notwithstanding that the note was payable on demand and under the Nebraska statute was payable I pay-able within one year and under the Utah statute wIWn six months frOm is date the suprem court Is of the opinIon that the cause of acton did not commence to exist until the Insurance Insur-ance company was out of funds and necessity arose for calling In the stockholder unpaid subscriptions to met the compays obligations This date the opinIon states to have been Dec 2i S96 The opinion also holds that the ob jeet of the law and the contemplation of the parties forming the insurance company under the laws of the state of Nebraska and not the mere form of th note should control In determln lag the due date of the not The Theiti pelatc court finds it was not intended to le payable forhwith without demand de-mand but only in the event of the unpaid par of the capital stock being required to pay the companys necessary neces-sary expenses and fire loses The rule as to unpaid subscIptons for stock when a corporation becomes insolvent is enforced by courts in requiring that the same be apple for the benefit or the creditors So also courts h te aso hbe almost universally held that the capital stock is a trust fund and that the statute stat-ute of limitations governing negotiable Instruments has no application dnd creates no bar untl the creditors have I had a opportunity to subject the unpaid un-paid stock subscriptons in settlement of theIr claIms The statute of lmita tons doe not commence to run until ate there is a cause of acton and in this there was no cause of case action untl after demand for payment or the note was made by the receIver The supreme court holds that the court below Judge Hart erred In sus taming the demurrer dismissIng the acton and decreeing that the statute of limitations barred the prosecution of the receivers acton to recover on the note The case is reversed and the lower court Is directed to set aside the judgment and to grant a new trIal Stepha vs Southern Pacific The supreme court of the state yesterday yes-terday rendered a decision in the case of Joseph Stephani plaintiff and ap peJant vs the Southern Pacific com pay In which the judgment Of the Second district court granting a non suit to the railroad company was affirmed af-firmed The acton was brought to rc I cover damages for InjurIes alleged to have been received 1 plaintiff a sec ton hand being run down by a South era Pacific locomotive a short distance west of Palisades Nev on July 30 1897 In the supreme courts opinion affirming af-firming the judgment of the lower court granting a nonsuit to the plaintiff plain-tiff who in obedience to the orders of the roadmaster was traveling oct a railroad velocipede ahead of the locomotive loco-motive going backward it Is stated Had the plaintiff exercised that reasonable rea-sonable care and caution which he was called upon to exercise in the position in which he was placed it is quite probable that he might have avoided the injury he complains or By falling to use reasonable care It cannot be sad that he did not contrIbute to brIng upon himself the injury for whIch he seeks redress Upon a careful examination of all the decisions of the higher courts of the country we are impelled to conclude con-clude that under the facts a shown the piaintkf was a fellow servant of the engineer and that the court committed com-mitted no error in directing a verdict for the defendant The opinion wa written by Justice MIner and concurred In by Chief Jus lice Bartch ad Justce Baskin |