Bowen v. Fairfield

May 21, 1927

Reporters:: , ,
Before:: Crosby

Crosby, J.

By writ dated July 25, 1917, the plaintiff brought an action in the Superior Court against the Dor-chester Ice Company, a Massachusetts corporation. The corporation was dissolved by Spec. St. 1916, c. 112, which took effect on February 21, 1916. The existence of the corporation for purposes of prosecuting or defending suits came to an end, under St. 1903, c. 437, § 52, on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍February 21, 1919. This court held in Bowen v. Dorchester Ice Co. 255 Mass. 159, that the action was to be dismissed, not on the merits but because of the dissolution of the corporate ex*40istence of the defendant. Thornton v. Marginal Freight Railway, 123 Mass. 32. Boston Tow Boat Co. v. Medford National Bank, 228 Mass. 484, 486. The defendant Fair-field will hereafter be referred to as the defendant.

On March 12, 1926, the plaintiff filed a motion to amend the action into a bill in equity. The motion was allowed by a judge of the Superior Court and the question before us is whether he had power to allow the motion. The action at law, as appears by the bill, was brought to recover from the ice company an indebtedness alleged to be due to the plaintiff. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case was referred to an auditor, who found that the plaintiff was entitled to recover the sum of $7,838.69. The case was then reported to this court.

G. L. c. 231, § 55, provides that the Supreme Judicial Court or the Superior Court may, before final judgment, allow an amendment changing an action at law into a suit in equity or a suit in equity into an action at law, if it is necessary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought. The Dorchester Ice Company is not made a party to the suit in equity. The bill substitutes as a defendant one who was not a party to the litigation in the original action. It ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍seeks to reach and apply property of the defendant Fair-field in satisfaction of the claim of the plaintiff against the ice company. It alleges that at the time of the dissolution of the corporation and previously thereto the defendant was the sole stockholder therein. In the absence of a statutory provision to that effect a stockholder is not liable to pay the debts of a corporation. Whiting v. Malden & Melrose Railroad, 202 Mass. 298, 304.

The original action was a proceeding in personam. The bill is in the nature of a proceeding in rem. It is a bill in substance to enforce a stockholder’s liability for a debt of the corporation. No claim was made in the original action that the defendant was liable for the debt which was sought to be recovered against the corporation.. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍It sets forth a new cause of action which was not in existence when the action was brought in 1917. In these circumstances the judge had no power to allow the amendment. Silver v. Jordan, 139 *41Mass. 280. Brooks v. Boston & Northern Street Railway, 211 Mass. 277. Church v. Boylston & Woodbury Cafe Co. 218 Mass. 231. Boston Tow Boat Co. v. Medford National Bank, 228 Mass. 484. Clark v. New England Telephone & Telegraph Co. 229 Mass. 1, 6.

G. L. c. 231, § 138, which provides that the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action, is not unlimited in its scope; it is not applicable in a case like the present, where it plainly appears from the record as matter of law that the cause of action set forth in the amendment is to enable the plaintiff to maintain the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bill for a new cause not intended when the writ was sued out. Church v. Boylston & Woodbury Cafe Co., supra. Clark v. New England Telephone & Telegraph Co., supra.

In conformity with the terms of the report, the order allowing the motion is to be vacated and judgment is to be entered in accordance with the rescript of this court filed on February 26, 1926, in the case of Bowen v. Dorchester Ice Co., supra.

So ordered.