173 Mo. App. 680 | Mo. Ct. App. | 1913
—The Buckeye Land and Town Company was a Kansas corporation organized in 1887, with a capital stock of $50,000 divided into 1000 shares of $50 each. It was, and is now, claimed by .the plaintiff that the defendant (who is appellant here) was one of its directors and stockholders, but paid into the corporate treasury on his stock less than 20 per cent of its face or par value.
On January 6, 1899, the corporation executed a note to Houston Hay for $1046 due 90 days after date. On January 11, 1902, the corporation became, and thereafter remained, insolvent. On that day the administrator of • the estate of Houston Hay, brought suit in the district court of Logan county, Kansas, to recover judgment on said note, and for the purpose of having a receiver appointed for said corporation. •The petition in that suit alleged the execution and ownership of the note in sufficient terms to entitle
In the list of stockholders so found by the court was the name of appellant as holding 100 shares of the par value of $50 each. All of the stockholders, not insolvent and dead, paid the respective amounts due from them under the above order, except appellant herein. And this is a suit begun July 27, 1905, by the receiver against him in the circuit court of Jackson county, Missouri, to recover the balance of his unpaid subscription due on the one hundred shares alleged to be held by him and the double liability thereon imposed by the laws of Kansas. The case was tried by the court on May 25, 1912, and judgment was rendered in favor of the receiver for $5,710. Defendant appealed.
Before disposing of the points involved in the case, attention must be given to the objection offered by respondent that appellant’s abstract is insufficient because it fails to show by recital of record entries that the bill of exceptions was ever signed or ordered filed, or that any exception was taken to the order overruling the motion for. new trial, or rather, and to be more nearly exact, that the exception appears in the record proper but not in the bill of exceptions. A careful examination of the record, however, discloses that this exception appears both in the record and in the bill of exceptions. And, while the abstract may not show all the record entries sufficient to perfect the appeal, yet there are statements showing that all the required steps were duly taken. Under rule 26 adopted by this court January 6, 1913, “if the abstract states the appeal was duly taken, then, absent a record showing to the contrary, by respondent, it will be presumed the proper steps were taken at the proper time and term,” And “It shall be sufficient if his
Appellant’s first point is that there is no evidence that appellant ever subscribed for stock or at any time became a stockholder of the Buckeye Land and Town Company. As the judgment of the trial court against appellant necessarily includes a finding that he was a stockholder, slight evidence will be sufficient to prevent appellant’s point on this question from being successful. In fact, if there is any evidence whatever to show that appellant was a stockholder, we are required; to give it effect, since we must give respondent’s evidence its fullest probative force in view of the finding of the trial court.
It is true, as appellant claims, that, in a case like this, where it is sought to charge with liability as a stockholder a person who denies being such, the books and records of the corporation, which do not contain his signature or other similar act to which he is a party, if unsupported by other evidence, are not admissible to prove his membership in the corporation. [Hinsdale Sav. Bank v. New Hampshire Banking Co., 54 Pac. 1051.] While the records of the corporation are evidence of all corporate proceedings therein recorded they cannot be used against a stranger to connect him with the corporation, and until defendant has been shown to be a stockholder by other evidence, he is a stranger,, and the records of the corporation would be binding on it but not on him. The question of membership in the corporation is the principal fact in dispute and that must be shown by evidence binding on the party sought to be charged. [2 Thompson on Corporations, secs. 1919, 1924.]
But in this case there is more than the mere records of the corporation to establish defendant’s membership therein. It was shown in evidence that the stock book and other records of the corporation,
■The articles of association filed with the Secretary of State for a certificate of incorporation contained the name of W. S. Kessinger. 2 Thompson on Corp., section 1936, says: “The charter of a corporation, issued by an officer of the State under a general law, is prima facie evidence that the persons named therein were members of the corporation at the commencement of its existence.” While the name W. S. Kessinger may not show that W. L. Kessinger was one of the shareholders, yet it is a circumstance which may be taken into consideration when it is shown by the testimony of the directors that W. L. Kessinger was quite faithful in his attendance on the meetings of the directors and acted in that capacity. In such case the use of the letter “S” as the middle initial instead of the ■letter “L” in the charter could be reasonably considered a mere clerical error especially in the absence of any showing that there was a person by the name of W. S.
It will be noticed that, in the cases holding that the records cannot be used to establish a person’s membership in the corporation, it is said the records are inadmissible, in the absence of other evidence showing such membership. That is, the records cannot be used, independently of everything else, to establish the defendant’s connection with the corporation. But when his membership is shown by other and competent evidence, then the books may be introduced to explain acts done by the defendant, to show what those cats mean and the inevitable inference to be drawn from them when they are compared in point of time, similarity and purpose with the acts of the other stockholders. For instance, if it-be shown by the testimony of a director, as was done in this case, that defendant
It is next urged that the district court of Logan county, Kansas, had no jurisdiction to appoint plaintiff as receiver in the case of Hay, Admr. v. The Buckeye Land and Town company. The ground of this objection is that there was no allegation, in the petition for receiver, that a judgment had been rendered against the corporation and an execution thereon had been returned unsatisfied. It is true that, unless there is a statute extending to creditors at large the right to have a receiver appointed, the only creditors who can maintain such an action must be either judgment or lien -creditors. [5 Thompson on Corp,. sec. 6839.] But In this case the statutes of Kansas gave this authority. By section 4701, General Statutes of Kansas, 1901, in force at the time this receiver was appointed, the district court or judge thereof had power to appoint a receiver in a number of cases, viz. First, in an action by a creditor to subject any property or funds' to his claims; and fifth, in cases, provided in the code and by special statutes, when a corporation has been dissolved, or is insolvent or in imminent danger of insolvency. Section 1310, same statutes, provided that a corporation should be deemed to be dissolved for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, if it be shown that such corporation has suspended business for more than one year. Section 1315, same statutes, -provided that the stockholders of corporations like the one in question should be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected
But, even if its action was erroneous, it was not void since it had jurisdiction of the parties and the subject matter. Its act, therefore, is not open to collateral attack. [34 Cyc. 164.] Even if the bill seeking the appointment is defective or fails to show grounds for equitable relief, everyone is concluded by the appointment except in a direct proceeding. [34 Cyc. 165, 166.] Even if the appointment was erroneous it was not void and cannot be collaterally at
Again, the absence of a prior judgment and execution clearly appeared upon the face of the petition in this case. That being so, the objection that plaintiff has no capacity to sue was waived by a failure to demur for that reason. [R. S. Mo. 1909, sec. 1800; Gregory v. McCormick, 120 Mo. 657; Alexander v. Wade, 106 Mo. App. 141; Mechanics Bank v. Gilpin, 105 Mo. 17.]
It is next contended that this suit cannot be maintained because no suit had been instituted in Kansas by the receiver to determine the amount of the indebtedness and the amount for which each stockholder should be liable. There is nothing in the Kansas statutes prescribing that such a suit must first be brought. The only reason or necessity for such procedure is that it is the duty of the receiver to collect unpaid stock subscriptions and the additional liability of such stockholders, and hold them as a fund to pay creditors, and to equalize the liabilities of the stockholders as between themselves. But the law does not require that all this be done in the suit against the stockholder to collect the amount due from him. The equalizing of the liabilities between the stockholders can be done by the receiver in the receivership case under the direction of the Kansas court after the receiver has collected the fund. The only authority
The above findings of the Kansas court and the facts alleged were again shown in this case. But if
The case of Evans v. Nellis, 187 U. S. 271, cited by appellant is not an authority applicable to the facts in this case. In that case the' court held that the receiver had no authority to sue, not because he had not by a preliminary suit determined the amount of indebtedness due and the amount due from each stockholder, but because the facts constituting and fixing liability all arose prior to the passage of the Kansas statute giving the receiver a right to sue; that the case was governed by the statute as it existed prior to the one giving the receiver the power to bring suit for the benefit of all concerned. The statute authorizing the receiver to sue made the liability of the stockholder an asset of the corporation which could be sued for and recovered by the receiver for the benefit of all creditors; while the prior statute made the liability of the stockholder an asset which the creditor alone 'could recover for his individual benefit.
But it is urged that the stockholders’ liability may exceed the indebtedness of the corporation; some may have paid more on account of this liability than others; the receiver is authorized to collect only the amount necessary and no more; if so, then how can it be known how much is needed from each stockholder unless a preliminary suit is first brought?
The answer is that the statute provides that the-receiver under the direction of the court, not in the suits against the various stockholders but in the receivership case, will adjust these difficulties and inequalities. Said statute reads as follows:
“All collections made by the receiver shall be held for the benefit of all creditors, and shall be disbursed in such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all claims against such corporation, together with all costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, as the court may direct; and in the event any stockholder, has not paid the amount due from him, the stockholders making payment shall be entitled to an assignment of any judgment or judgments obtained by the receiver against such stockholder, and may enforce the same to the extent of his proportion of claims paid by them.”
In this case it will be noticed that defendant is in no danger of having to pay more than his proportionate share since the judgment against him is $5710 while the unpaid debts amount to $14,660.
Lastly it is claimed that the demand is barred by the Statute of Limitations,
“Statutes of limitation do not commence to run as against subscriptions to stock, payable as called for, until a call or its equivalent has been had; and subscribers cannot object, when an assessment to pay debts has been made, that the corporate duty in this regard had not been earlier discharged.”
Section 4449, General Statutes of Kansas, 1901, provides that “If when a cause of action against a person be out of the state .... the period limited for the commencement of the action shall not begin to run until he comes into the state . . . .” As defendant was a nonresident of the state of Kansas and was not personally in Kansas he could not, if sued in Kansas, have successfully pleaded the Kansas Statute of Limitation. Section 1895, Revised Statutes Mo. 1909, permits the Kansas limitation statute to bar a suit in Missouri founded on a cause of action originating in Kansas only when the action is barred in Kansas. [Wojtilak v. Coal Co., 188 Mo. 260, l. c. 295.]
Under the Kansas statutes, the creditor could not have a proceeding instituted against the stock
There is nothing in the record to justify us in disturbing the judgment of the trial court. It did not render judgment against defendant for. the double liability authorized by the Kansas statute, but only for. the amount of the unpaid subscription with interest as authorized by section 3590, General Statutes of Kansas. But no complaint is made by the receiver because of the failure to include such double liability. The judgment is, therefore, affirmed.