80 Wash. 384 | Wash. | 1914
As we proceed, we think it will appear that this cause was commenced and prosecuted to final judgment in the superior court by the plaintiff city as a pure action at law, seeking only recovery, for its own exclusive use and benefit, of a personal money judgment against the defendant Carr. The city seeks recovery of such judgment against Carr upon the ground that it is a creditor of the Monte
After trial before the court without a jury, a personal money judgment was rendered by the court against Carr, not in favor of the city for its own use and benefit, but in favor of the creditors of the Montesano Planing Mill Company, including the appointment of a receiver for that company, to enforce payment of the judgment by execution, if not voluntarily paid by Carr, and distribute the proceeds thereof among the creditors of the Montesano Planing Mill Company. Carr has appealed from the judgment, seeking reversal thereof, upon the ground, among others, that the trial court erred in permitting the city to maintain an action for its own benefit, and in rendering the judgment, in view of the fact that the cause was commenced, and at all times prosecuted by the city, as a law action for its exclusive use and benefit. The record before us plainly shows that Carr is entitled to here urge reversal of the judgment upon these grounds. The city has also appealed from the judgment, seeking reversal thereof and the rendering of a judgment in its favor against Carr for its exclusive use and benefit.
The facts determinative of the city’s right to maintain this action we may regard as not in dispute. It is of no material consequence here whether we regard the question as being presented by the claim of error made by counsel for Carr on the trial court’s overruling of his demurrer to the city’s third amended complaint or by the claim of error made by counsel for Carr in the rendering of the judgment by the court upon the evidence presented at the trial. The controlling facts touching this question may be summarized as follows:
The Montesano Planing Mill Company is a domestic corporation of this state. In December, 1909, it became in
Thereafter, in November, 1910, the city commenced this action against Carr, as sole defendant, resting its claim upon the facts we have summarized and assumed as true, as claimed by counsel for the city, and also upon the alleged fact that Carr is indebted to the Montesano Planing Mill Company in the sum of $1,000, and interest thereon, upon an unpaid subscription made by him to the capital stock of that company. The entire prayer of the city’s third amended complaint, the one upon which the trial proceeded after the overruling of Carr’s demurrer thereto, reads as follows:
“Wherefore plaintiff prays for judgment in the sum of $1,687.44, with interest thereon at six per cent, against the said F. L. Carr, and for such other and further relief as to the court may seem just and equitable.”
While the distinction between actions at law and suits in equity as to the mere form no longer exists in this state, the courts nevertheless are, of necessity, compelled to recognize certain inherent distinctions between them. Thompson v. Caton, 3 Wash. Terr. 31, 13 Pac. 185; Distler v. Dabney, 7 Wash. 431, 35 Pac. 138, 1119; Barto v. Seattle & International R. Co., 28 Wash. 179, 68 Pac. 442; Overlock v. Shinn, 28 Wash. 205, 68 Pac. 436. It is often necessary to recognize this distinction as an aid to the determination of the question of the right of a party to prosecute an action for his exclusive benefit, and this, we think, is the real question here involved.
In the early case of Burch v. Taylor, 1 Wash. 245, 24
“The main question involved in this case is: Does § 2434 of the Code of Washington authorize an action at law by a creditor of a corporation against a stock subscriber? This inquiry, if determined in the negative, would oust the justice’s court of jurisdiction. The second clause of § 2434 is as follows: ‘Each and every stockholder shall be personally liable to the creditors of the company to the amount of what remains unpaid upon his subscription to the capital stock, and not otherwise,’ which is simply a declaration of the American doctrine of the common law of corporations as held, almost without exception, in the decisions of the courts. Thomp. Liab. Stockh., §§25-37; Cook, Stocks, § 199, and note 1; Sawyer v. Hoag, 17 Wall. 610.”
and, after holding that unpaid stock subscriptions are a trust fund for the payment of creditors, continued:
“To enforce a right to participate in a trust fund requires proceedings in equity, unless there be peculiar and explicit statutory provisions to the contrary. So in this class of cases the action must be in equity where the creditor desires himself to be the actor in the proceedings to collect and apply subscriptions. Therefore, in the case at bar, the justice had no jurisdiction of the subject-matter of the action, and the judgment must be affirmed.”
Wilson v. Book, 13 Wash. 676, 43 Pac. 939, was also a law action by a creditor of an insolvent bank, seeking recovery for his own benefit from a stockholder of the bank upon the stockholder’s secondary liability; that is, the liability imposed upon the stockholder by § 11, art. 12, of the state constitution, beyond what he might owe upon his stock subscription. The question was there again examined by the court and the former holding adhered to, the trust theory being applied as where the recovery was sought upon an implied stock subscription. Chief Justice Hoyt, speaking for the court, said:
“A method which would allow a single creditor to maintain an action at law against one or more of the stockholders for his own benefit would be so unjust to other creditors and might result in such annoyance to the stockholders, that only the most positive language would justify the courts in holding that the liability might be thus enforced. So to hold would enable one creditor to obtain more than his share of the fund which should be derived from this liability. Not only would such a holding allow a creditor to do this, but under it a stockholder could be subjected to a separate suit at the instance of each one of the creditors of the corporation.”
The question was again examined by this court in Watterson v. Masterson, 15 Wash. 511, 46 Pac. 1041, and the former decisions adhered to, after earnest argument by learned counsel to induce the court to depart from its former holdings. Our attention is called to the decisions in Adamant Manufacturing Co. v. Wallace, 16 Wash. 614, 48 Pac. 415; New York National Exchange Bank v. Metropolitan Sav. Bank, 28 Wash. 553, 68 Pac. 905; and Chilberg v. Siebenbaum, 41 Wash. 663, 84 Pac. 598. These decisions
We do not overlook the holding of this court in Dunlap v. Rauch, 24 Wash. 620, 64 Pac. 807. In that case, the action, it is true, was originally commenced by the creditor against the stockholder upon his unpaid stock subscription for the exclusive use and benefit of the creditor; but, while the case was pending, the plaintiff creditor gave notice to the defendants and filed a written offer, requesting that an order be entered in the cause, substituting one Beach, the receiver of the corporation, as plaintiff, Beach having been appointed receiver of the corporation pending the action, in another action, and offering to assign any judgment recovered in the action to the receiver, to the end that the proceeds thereof might be equitably distributed among the creditors. This was a voluntary conversion of the law action into an equitable one for the benefit of all creditors before the rendition of judgment in that action. Thereafter, the cause proceeded, and judgment was rendered ac
We have not lost sight of the fact that the city’s prayer for a personal money judgment against Carr concludes with the words “and such other and further relief as to the court may seem just and equitable.” Whatever construction might be placed upon this language of the prayer, under different circumstances, it seems to us quite plain that it does not result in converting this action into an equitable action for the benefit of the city and the other creditors of the insolvent Montesano Planing Mill Company, in view of the manifest theory upon which counsel for the city has waged this action. Indeed, his attitude constitutes, in substance, an assertion that his general prayer for relief had no such meaning. He is still consistently insisting here that the judgment of the trial court was erroneous in so far as it was rendered in favor of the creditors instead of in favor of the city for its exclusive use and benefit.
As to the appeal taken by the city in this cause, little need be said, it being practically disposed of by our discussion
If it be suggested that the judgment of the learned trial court was, in any event, a correct disposition of the cause upon the merits, which theory counsel for the city is combating even at this time, we think such suggestion may be answered in the negative by the fact that Carr, as defendant, was not called upon to defend, and was not defending an action calling for any such judgment. We conclude that the judgment must be reversed and the action dismissed.
It is so ordered.
Fullerton, Morris, and Mount, JJ., concur.