Rauer

This is an action to recover the unpaid portion of the subscription price of stock in the plaintiff corporation. Plaintiff recovered judgment, in the trial court, and this appeal is from the order denying defendant's motion for a new trial, and comes here upon a statement of the case and the judgment-roll. It appears by the statement that plaintiff was a savings and loan corporation from the year 1888 to the twentieth day of January, 1895, when it went into liquidation, in accordance with the provisions of the act entitled: "An Act creating a Board of Bank Commissioners, and prescribing their duties and powers." (Stats. 1895, p. 172, c. 167.) On the third day of January, 1895, two certificates aggregating twenty-four shares of the capital stock of the corporation were surrendered, and twenty-four shares were issued to defendant in his name and receipted for by him, and his name was entered in the stock transfer book, stock journal, and stock ledger. The receipt signed by Rauer was on the stub from which the certificate was detached, which showed that the stock was one-third paid up, and the receipt recited that the certificate was received subject to the articles of incorporation…

Appellant, in his petition for a rehearing, asks us to determine a point not passed on in the opinion heretofore filed in this case, viz., as to the validity of a transfer of stock made after the banking corporation went into insolvency. The findings of the court show that the corporation went into insolvency May 1, 1894, and that the transfer of stock took place January 3, 1895. Appellant contends that under these facts the transfer of stock was void. If he be correct in this latter contention, defendant did not in any sense become a stockholder of the corporation plaintiff, and the result is that the findings in this case do not support the judgment. Indeed, in appellant's petition for a rehearing he so contends. We quote his language: "He [appellant] in effect contends that the judgment is not sustained by the findings. Surely a statement on motion for a new trial cannot be made to take the place of the court's findings for the purpose of sustaining the judgment that is otherwise unsupported by the findings" In thus stating his contention counsel has overlooked the rule that on an appeal from an order denying a motion for a new trial the point that the findings do not support…