148 Ga. 663 | Ga. | 1919
(After stating the foregoing facts.)
1. It is conceded that the copy process served upon the plaintiff in error was not signed by the clerk. The motion, in the nature
2-5. The rulings made in the second, third, fourth, and fifth headnotes require no elaboration.
6. As to the 100 shares of stock standing in the name of Solomon & Company, it is insisted that there was no contractual relation between the bank and plaintiff in error. To this we are not prepared to assent. It is said that section 2248 of the Civil Code, which in part provides that “The stockholder in whose name the capital stock stands upon the books of such corporation at the date of its failure shall be primarily liable to respond upon such individual liability,” fixes the liability under the charter of the Exchange Bank upon Solomon. Solomon is liable to the bank. His liability does not depend upon section 2248, supra. That section did not create such liability as to him. One who knowingly allows his name to appear upon the books of a corporation as the owner of capital stock therein, with the right to receive dividends, vote the stock, and to have the advantage of the appa'rent ownership, is estopped to deny that he is also subject to the burdens, statutory or contractual, imposed upon him as a stockholder in the corporation. He deals with the corporation as a stockholder. He holds himself out to the public as a stockholder. As to the former he is ^stopped to deny, and as to the latter it would be inequitable to
7. If we are correct in the foregoing, we do not think it can be said that the’ amendment set up a new cause of action. Relatively to the plaintiff in error he never became a party defendant to the suit, and the suit never became a live action as to him, until the service upon him of the amended petition. It is therefore not a question of adding a new cause of action by amendment. The suit as to him stands just as if in the original action it had been charged that he was the owner of eleven shares of the capital stock which stood in his own name upon the books of the bank, and 100 shares of the capital stock which stood in the name of Solomon & Company, but ’that Solomon & Company were mere brokers or agents for him and had no interest in said 100 shares. But the amendment to the petition, treating it as such, did not set out a new and different cause of action. The cause of action as to the eleven shares of stock standing in the name of the plaintiff in error, and the 100 shares in fact owned by him (according to the allegations of the amendment) but standing on the books of the bank in the name of Solomon & Company, is the same, ultimately one—the individual liability of the plaintiff in error as a stockholder in the Exchange Bank of Macon under its charter. The judgment of the court below, dismissing the plea in abatement and overruling the demurrer to the petition, is
Affirmed.