86 Mo. 466 | Mo. | 1885
— This is an appeal from the St. Louis court, of appeals affirming the judgment of the circuit court, by which an execution was awarded against the defendant for the amount found to be unpaid upon stock by him held in the Excelsior Insurance Company, and against which the plaintiff had obtained judgment. Be
Now, section 736 Revised Statutes, is substantially the same as section eleven, page 328, General Statutes, 1865, the effect of which is, that upon a -H alia bona return to an execution against a corporation, execution may issue against any stockholder to the extent of the amount of the unpaid balance of his stock, by order of the court, upon motion filed in open court and after sufficient notice. This section is without restriction and applies to any corporation and to any stockholder. It points out a procedure essentially different from that given by those sections of the general laws of 1855, the prevailing feature of which was to create the additional liability to creditors, and to give the remedy therefor. Whether under those sections the creditor could, or could not, reach an unpaid balance due upon the stock subscription to the corporation we do not regard as essential to determine in this case. The statute of 1865 is practically a new one and in view of the constitutional and legislative enactments passed since this corporation was created upon the subject of the liability of stockholders, we have no doubt but it applies in terms to the stockholders of the Excelsior Insurance Company. If the charter of that corporation pointed out any proceeding by which the creditor could reach the balance actually due upon the stock when the corporation became insolvent, we should halt before coming to the conclusion before expressed, but regarding those sections of the general laws of 1855 as repealed, so far as this corporation is concerned, there is nothing in the statutes of 1865 and 1879 inconsistent with the charter, and we do not regard the authorities cited as having any direct bearing upon the question, though the Excelsior