103 P. 204 | Cal. | 1909
This is an action by a judgment creditor of the corporation defendant, against the corporation and a number of its stockholders, in the nature of a creditor's bill *764 to compel the payment and application upon the plaintiff's judgment of so much of the amounts due from the stockholders to the corporation upon unpaid subscriptions to stock as may be necessary to satisfy the judgment and costs.
Demurrers of the defendants to the complaint were sustained, the plaintiff refused to amend, and judgment was then given dismissing the action. From this judgment plaintiff appeals.
The only point presented upon the argument is that the complaint does not aver that there has been any call or assessment upon the alleged unpaid subscriptions for stock, nor that there has been any request or demand upon the directors of the corporation to make such call or assessment. It is claimed by the respondents, and it is said that it was held by the court below, that such call or assessment or a demand therefore upon the directors and a refusal by them, is a necessary condition precedent to the right of a judgment creditor to maintain an action of this character and that the complaint is not sufficient unless it shows that this condition has been complied with.
We do not so understand the law. Where a solvent corporation finds it necessary in the course of its business to call in an additional amount of its subscribed capital stock, and the subscription agreements do not state when, in what amounts, and upon what conditions, it is to be paid, the statute being the measure of the corporate rights in that regard, it is no doubt true that the statute must be followed and that a call is a necessary condition to the existence of a cause of action by the corporation to recover upon such subscriptions. But this rule has no application to a proceeding in equity by a judgment creditor to subject the unpaid subscriptions due to the corporation to the satisfaction of the judgment. The rule applicable to such cases is thus stated in a note to the case of Thompson v. Reno SavingsBank,
It is said that the court below in giving its decision relied upon the discussion of this subject by Justice Smith of the district court of appeal of the second district in the case ofTurner v. Fidelity Loan Concern,
It may be observed further, however, that in all such cases, even if we concede that an assessment or call of some character is a proceeding which the stockholders may insist upon, the only effect of this concession would be that the court in equity, after it had obtained jurisdiction of the defendants, would have authority to make whatever call the law should require in that behalf, and it could thereupon order the respective stockholders to pay into court such amount as it should find necessary to satisfy the demands of the complainants. This order would be a sufficient call to satisfy all that is required by the law in this particular.
The decision in Union Savings Bank v. Leiter,
The judgment is reversed.
Sloss, J., and Angellotti, J., concurred. *767