Cavitt v. Amsler
242 S.W. 246
Tex. App.
1922
Check Treatment

*1 plaintiff stock to until the final determination of an es- taken from a former action to CAVITT v. AMSLER et al. tablish title shares. Austin. of Texas. — Enjoining <§=>111 if 'Limitation of actions April Denied suspended transfer of action June for dividends. Where the limitation of a cause of action < n =592 —Each Judgment corporate div- completed against plaintiff for dividends was of action.- idend becomes a spe- date, (cid:127) on a certain in an for decree action Judgment performance of a con- for performance cific the contract of sale of the sued tract for did not bar to sell stock and 'for one dividend date, enjoining of that by subsequent action corporation dividends on the stock seller, buyer, against for corporation and the hearing, suspended until final the statute. recovery dividends corporation seller, as each dividend from District McLennan separate cause of action. declared became a County; Judge. Alexander, P. Jas. mandatory Judgment Judgment <§=>588 — by. S. A. Cavitt Amsler injunction compel of stock not defendants, and another. Prom for bar to action for dividends. plaintiff appeals. Reversed Where, in a suit for plaintiff, pur- transfer of stock to Weatherby Rogers, appel- Waco, & for specific performance suant to a decree there lant. prayer for the of and no was no Eason, Waco, Hooker, and J. H. plaintiff’s right to dividends from the sue stock, McGregor, was not a bar to the seller dividends Findings of Pact. plaintiff. after sale to the seller JENKINS, 16, 1915, appellant J. June <©=324(2) Corporate (cid:127)3. of actions Limitation — (district suit No. 22555 court num- minutes, declared, showing whom dividend ber) against appellee Amsler, to years’ limita- contract to which 4 possession of title and the 50 shares McGregor Milling Company, and to re- Where the minutes of a show dividends, $100 to have been whose favor dividend it be- writing four-year paid comes a contract statute of said stock sale 20, 1916, judgment to Cavitt. On December was rendered favor of for a <§=>28(1) 4. Limitation of actions div —'Where specific performance of the contract for the party suing, idend not declared favor of of such stock for the sale writing. evidenced July 6, 1917, $100 dividend sued for. On dividend is not de- party suing therefor, filed his clared favor of the writing (district suit is for a debt not the and the evidenced in cause No. 23679 court number), against appellees herein, one of the <§=>66(2) 5. Limitation of actions —Statute alleging that, notwithstanding he had re- operative stockholder makes demand covered shares of dividends. stock, that Amsler had Corporation’s refused to transfer payable upon the same to and until stockholder makes com- a de- pany mand for the of his and the cancel refused to Amsler’s same is the statute of limitation will to issue stock to him in lieu thereof. run. was rendered March Am- <§=>66(2) Corpora- 6. Limitation of actions error, sler sued out a writ cause No. indicating tion’s act it will not equivalent to stockholder of the lower court to a demand and refusal. 766), was affirmed this court both, corpora- If the acts or words or of a and the mandate from this court was filed tion, corpo- indicate to a stockholder trial court ration will not a dividend to this would present filed for the equivalent be payment to a demand and refusal for the paid by dividend, and it would not be In Amsler. alone demand for dividends defendant. was both cause No. should be made to the statute in motion. Amsler and the defendants, and both are defendants cause. The herein in this <§=>105(1) 7. Limitation of actions —Cause paid by recovered were to be action for dividends did not accrue until de- pany 15, 1915, Amsler as June termination of stock $250; $1,000; December Statutes limitation did not start to run $500; 1916, $2,000. against dividends and November a cause of action paid by corporation instructed a verdict | seller of Digests other cases see same <§=3For for accordance with the trial *2 Tés.) are res tion dividends herein appeal, be recovered true that such dividends such the trial of that should pellant A. dends petition lant to recover leged that 22555, and was issuance Amsler has appellant, in issue refused appellant, A. owner of such stock. of No. dent, the relief declared datory dividends dividends in the same might properly Iver, Gammel, ly might issue dends, There are two Appellant, [1] As to res Snowball, appellees, this action. (N. S.) appellees, res tried only recovery. in cause from an It is judgment against 22555 have amended but neither appellees petition; nor is i’t adjudicata and limitation. 107 Am. have done but it was not injunction. either of adjudicata, although issued in this refusal 100 Tex. became the until Tex. 556. Either Amsler right to Amsler and was as matter of inducement is issue paid. injunction, amount of dividend is cause 98 would judgment in a appellant, but inspection No. February paid, bar adjudicata, it is the conten of the mill such verdict. the dividends was No. new that, pleadings case; sued for which, It Opinion. No. in that case was the man judgment had known that such be affirmed. issues 331, cause of action. so. Each dividend when of them Rep. require is It recovered, 23679 contention the mill 22555, inasmuch wherein it was appeal, only cause, but, is 99 transfer his stock to A as to case, 81 W. Amsler for the title if decided petition and presented that cause is bar might true temporary have amended his was a suit for recovery of such did S. pleaded. stock, refusing right lieu thereof Oldham all not so. petition, other These as 701, have raised rendered matters we on while CAVITT mentioned cause was such divi- all sought to when appellees, to appellant It appellees gave ap- tiff Especial but in favor it Jones v. that he hearing 66 on account take injunc or the the dividend sought as is issues Moore v. Mc utes issues for the reason issue, is al as set out it divi pay being evi put in R. R. is it v . AMSLER í ;.w.) in No. 22555. have would herein. sufficient for the against not sufficient ord fendant icates of indicate submitted bar to action on Teal Runnels, ant pany, showed that such ant James v. v. Aldrich Philipowski of the quire certificates. (Italics ours.) poration adjudicate matter dan presented statute statute tract dividend is clared, quieting suing These [3,4] 50 is entitled to Amsler; and is taken in affirmatively anything issue, litigated, v. done so v. quieted opinion quote relief last therefor, be matters Massey specifically a it becomes a of relief set out possession As to McGregor Milling Terrell, findings But, of title as stock issued 71 a in this suit. to have raised an writing, general James, not applicable as above evidenceand any bar (Tex. not declared prayed Tex. from the record in No. v. prayer the mill G. J. to whether the two by intervening no except only while the connection Spencer, in (Tex. limitation, findings stockholders. other was not plaintiff as considered, such 48 Tex. 352, prayér 81 demurrer, law as We hold shows that of fact finds No. court, and judgment, appellant’s for as capital in prayed for, Tex. issue to the facts in his own name matter. stock, 9 matter No. 23679 would 63 S. W. general show in Milling quieting well follows; 380, & Grain 23679, 508; pleadings may title and Tex. for a debt not evi- fact showing owing by it to have new bar issue, might as a stakeholder the court would 157 such becomes a but this should will not be cause of 260; as of fact But issue It petition. 134 W. 804. issue is here fact, & Grain Com- another if the record Pishaway we hold that relief, but it litigated, whose or four is S. W. the title of and to That if the defend- appellant’s have been Company." where issue was S. counsel, is true, possession Whitman that such 23679, him two-year the min the cor did entitled defend- might l>y certif- is de plain- 1087; favor case, suit. 247 new rec- Jor con de- as as v. it is a

had 'been lulled that and indicate to a mony tending fused, will equivalent sary in Yeaman v. Galveston tion of case, appellant alleged should be lant’s cause til a stockholder makes a demand for the the Dividends are payment This dividends stockholders, rata suit at law Rhodes, year statute, notwithstanding the fact that milling his time of such he two which four fore, by fraud, aside deneed in equity. cept applied. cancel the dividends as 109 W. [6] We However the [5] suit in prevent purchase would not be. to Amsler. question very fully years, of dividends was declared; The no other into among the transfer had to run. motion. *3 it was held stock. company same In No. milling general, hold, however, order on the trial In that equity, made, and also to before the security by ato that McCord v. such' his stockholder that purchase. applied will trust payable recover had not been knowing he provision By instant If the acts words or demand and refusal for the applicable. paid establish his the action barred dividends and the same is company provision incident title dividend. it not be having ease by fraud, clearly that the virtue still remains: things, was' same institution manager 116 S. W. 40. to the demand for dividends that dividends as Nabours, recover and The case Cas. suit McCord. That to Amsler more than tion. limitation will not held that from Amsler paid upon debt, Co., had statute of limita was with reference to to debt. to recover divi- obligation is not a paid Amsler, 1917E, and produced such dividends it is not may Amsler, and, allegation benefit of ably McCord, upon unequivocally this would be bond. There was a motion to dissolve the been obtained the recovered the instant and statute ex- suit holds the Gordon v. conspired presumed this suit? As stated in our discussed Is demand. testified conduct his and un proven statute short time of the ten neces to at the on of the After a careful was ment there- testi both, judgment same been cause was not filed been was four- institution of this two- ion pro the his re set if that to postponed pending ary temporary injunction, July 14,1917. affirmed By of the trial of error to after the defendant alleging in his name holder versed and remanding reply showing manding alleging appellant, and the briefs ed that we our are other reasons not mentioned in the tend in is reversed dividends more than whether in a raise an issue of fact knowledge, so, At Appellees verdict for Reversed and The do; for the reason run the the statute of limitation referred title original opinion argument filed, suspended during they that of Amsler canceled brief and written part'of by issuing testimony and, favor, repudiation in that that he was the owner thereof. He 19,1920. marked time the hold that the statute of limitation in cause No. there we were in cause No. before remanded on as incidental dividends herein sued notwithstanding case for Final action in that cause was his referred court, appears, Thereafter he filed a cause. The mandate in instructing cause. paying remanded. ability correct in the institution examination attorneys. This suit was filed Febru- company had sufficient Amsler sued herein. this case is original opinion herein, this cause should an able error that cause two the court below until Amsler stock to the appeal 22555,sought dividends to Amsler. Appellant to, of mill and careful and reissued to and they earnestly the issue of limita- gave supersedeas thereto, reasons we have reversing appeal would the him a stock- We but soon there- brief gained reversing jury due establishing of sufficient to as to think there jury out a writ refused so the motion has filed knowledge for, heard on and stated from the this suit. research conclud- petition thereto, to have him as only return knew be re- erred here- writ- opin- him, con- pay- and the ing company Civ. incumbering, which time the limitation this appeal. ruary 23, pellant claimed Cavitt (lends hearing til final tion, is joined suc-h the the 23679 was heard on the R. A. decree was GATES v. TEXAS EMPLOYERS’ 15), providing right.” *4 ceedings, vented established would in according Master and servant determining Hutchinson, Tes.) (Vernon’s for death of childless husband viving wife. “Where a Motion overruled. A final such suit was community Under the legal remedy by temporary injunction, death was the issue the statute of limitation did Civ. (N. McGregor parties hearing him. herein is the time hearing S.) 1920. Such person Cyc. 1278; whether limitations have barred his entered 92 Kan. or otherwise could and doubtless would have Grain Mill & of the cause title to employee laws of descent and distribu- &Mill Grain during Williams v. in said cause was had Feb- recover dividends until at an earlier enjoined overruled. dividends on said stock un- years July therein: <®=>386(5) Compensation pending prevented ownership counted GATES v. Cyc. had filed suit final 269;W. Melds v. Austin pendency Supp. 1918, still amount of Texas. Galveston. of the husband and disposing could 141 Pac. motion to July Pease v. Southerlin appellee. the motion for re- shall be death of Denied June permitted upon stock; stronger adjudication Company Pouns, issue 'involved Company, and doubtless Hutchinson Cavitt; ease, recovered for goes transferring, INS. ASS’N. date the merits.” TEXAS is thus of the stock cause No. sued distributed completed art. 5246- Act, following legal exercising the mill- dissolve ers’ husband to sur- him in (Tex. Garrison, 8a§ pro- pre- run under the (242 S.W.) ap- en- Gates, EMPLOYEES' at defendant, plaintiff appeals. Affirmed. pany, Act, which reads as follows: fore half of the award made for the death of named, father of the him for the named defendant. From under 1 et widow, death of Board under the 17th son ty; amended ance Association t'o recover Company, said Board which was refused. He compensation by deceased. viving ploy county Texas. also made who has not no' and exclusive benefit Gates, not at without wife, and, to the father (Vernon’s dependent and for abandoned going at “The LANE, W. P. three children, goes the time of. the Chas. E. course by virtue seq.), the Industrial Insurance Association. section of the time of upon appellant herein, compensation provided him. After Irene one said said regard maintenance, Neblett, Appellant, Joseph age suit in the day by Joseph George Gates, dependent upon against him, Ann. under Rev. parents J. The Humble and held a period Employers’ Liability her killed. He left widow, The deceased INS. ASS’N application Insurance Association under Pollard & corporation, was, George and who appellee herein, contends Ashe, Judge. Employers’ her Liability prior Gates, husband and the minor deceased of section District November, 1920, Thirty-Fifth Legislature good employment application proceeding by plaintiff Irene the Industrial Accident thereto abandoned his wife Houston, St. injury, deceased. three Gates, Gates Accident Board injury the death district Act, after act shall and his was, policy Berry, dependent cause and for and while Supp. 1918, and he has Act. art. left Gates, was entitled to 8a who Liability at without surviving Gates, while in the wife compensation to &Oil as he was dependent court of Harris Texas for in the time of father, Joseph On the compensation indemnity was awarded Harris Act of Texas children sur- Houston, prior grandparents a subscriber wife and not appellant. engaged dependency, art. 5246— good said appealed. over Liability Refining Employ- who therefor Act -the sole children, prior him his husband George father, thereto Insur- period Coun- fore- date then one- em- has be- Digests and

cg^sFor other cases see