44 Kan. 182 | Kan. | 1890
Opinion by
This case comes here on error from the district court of Brown county. January 29, 1886, the plaintiffs obtained judgments against the Elevator and Mill Company, at Everest, Kansas, for $7,146.50. April SO, 1886, the said Elevator and Mill Company was dissolved by proceedings had in court. April 25,1887, the plaintiffs commenced suit in the court below, under ¶1204, General Statutes of 1889, to ascertain and establish the liability of the defendants as stockholders in said Elevator and Mill Company. February 22,1888, they obtained a judgment or order ascertaining and establishing such liability; and on the same day the plaintiffs issued their execution to Atchison county, Kansas, where, being indorsed “No goods,” it was, on the 24th day of said month, levied upon the land of the defendant Honnell. Pending the appraisement and sale of the land so levied upon, and before said land had been sold, the plaintiffs' were notified by the clerk of the district court of Brown county, whence the execution issued, that the money thereon
The plaintiffs complain of the ruling of the court upon both branches of the motion. They say that the court had no right upon the motion as filed, at the time when filed, to modify
The second question is one that has given us more trouble. It would seem that under the circumstances surrounding and attending this case the plaintiffs should recover the full amount of their modified judgment. But turning to the General Statutes of 1889, ¶4544, we find it reads as follows:
“When two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made shall be distributed to' the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judg*185 ments on which execution was issued may have on the lands of the judgment debtor.”
This section provides that where two or more executions against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, no preference shall be given either of said writs. In this case all the judgments were rendered at the same term, and all the writs were issued out during the same term. It seems to us, that whatever would be the rights of the plaintiffs under the general authorities in relation to the distribution of funds recovered upon judgments against stockholders of a corporation, our statute above quoted applies under the circumstances of this case, and renders the fund raised upon the execution of the plaintiffs subject to a pro-rata distribution among all the creditors having judgments at the same term upon which executions were issued during the term.
It is argued that an order obtained in a proceeding instituted under ¶ 1204, General Statutes of 1889, to ascertain the liability of stockholders of a corporation, is not a judgment; that the proceeding under this statute is not an ordinary action at law or proceeding in equity, but is a special proceeding to ascertain the amount of a liability that does not grow out of the relation of debtor and creditor, but exists solely by the terms of the statute, and that therefore the provisions of ¶4544 above quoted do not apply. The language of ¶ 1204 is:
“If any corporation created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; aud if judgment be rendered and execution satisfied,” etc.
Suits may be brought, a judgment recovered and execution issued under this statute. If the legislature did not contemplate an action and a judgment under the statute, it was very unfortunate in the selection of its language. We feel con
By the Court: It is so ordered.