223 Pa. 364 | Pa. | 1909
A number of reasons on which the defendant relies to prevent judgment are set out in the affidavit of defense, in addition to the one on which the order of the court discharging the rule for judgment is based.
Two of these should be briefly noticed. One is that the defendant was not brought within the jurisdiction of the Ohio court by service by publication. The proceeding in which a constructive service was made was to enforce an assessment made on the stock to pay creditors by obtaining a personal judgment against the defendant. The action in this state was upon the judgment so obtained. In the parts of the Ohio statute recited in the statement of claim, there is no authorization of service by publication in proceedings to enforce the liability of stockholders to creditors, and the statute itself negatives the implication of the consent of stockholders to such a service because of their membership in the corporation, by expressly providing that “judgment shall be rendered against stockholders who have been served with summons for the pro
Another reason presented by the affidavit of defense was that the action was not brought within the time to which the liability was limited by the Ohio statute, nor within the time fixed by the statute of limitations in Pennsylvania. The corporation was adjudged insolvent, and a receiver was appointed in November, 1897. The attempt to bring in the defendant by publication was made in January, 1901, and the action in the common pleas in this state was begun in March, 1906. An act of the legislature of Ohio amending a section of the revised statutes in relation to proceedings to enforce the individual liability of stockholders, provides that: “ An action upon the liability of stockholders can only be brought within eighteen months after the debt or obligation shall become enforceable against stockholders.” The statutory liability of stockholders of an Ohio corporation is complete when the corporate property has been placed in the hands of a receiver, and the statute of limitations runs in their -favor from that time: Younglove v. Lime Co., 19 Ohio, 663. Where a new liability is created by statute, to be enforced only within a given period, the time within which suit must be brought operates as a limitation of the liability and not merely as a limitation of the remedy, and the limitation is operative in any jurisdiction where it is sought to enforce the cause of action: Railway Co. v. Hine, 25 Ohio, 629; The Harrisburg, 119 U. S. 199.
Por these reasons as well as for that discussed in the opinion of the learned judge of the common pleas, the judgment of the court is affirmed.