141 Mo. 149 | Mo. | 1897
— This is an appeal from a final judgment on demurrer. The petition, omitting caption, is in the words and figures following: “Plaintiff states that it brings this suit on its own behalf and on behalf of any other unsatisfied creditor of the defendant, the Johnson County Coal Mining Company, who shall come in under this suit and contribute to the expenses and costs thereof; plaintiff states that it and said defendant, the Missouri Pacific Railway Company, are corporations duly incorporated under the laws of the State of Missouri, and were such corporations at all the times hereinafter mentioned, and states that on the seventh day of October, 1888, this plaintiff recovered in this court a judgment in its own favor against the defendant, said mining company, for the sum of sixty thousand dollars, which said judgment bore interest at the rate of six per cent per annum from, the date of its rendition; that an execution was duly sued out upon said judgment, and under said execution the sheriff for the county of Johnson did collect and apply to the payment of said judgment the sum of $480.51, in various sums, on or about the fourth day of April, 1889, and as to said judgment and the residue of the interest thereon remaining unpaid, said executions were returned unsatisfied by said sheriff by reason of his inability to find property of said defendant mining company out of which to satisfy the same, and there is now no property or assets of said mining company subject to execution at law. Plaintiff states that said mining company is a corporation ‘incorporated under the laws of the State of Missouri prior to the first day of April, 1882, and thenceforward conducted a coal mining business in said county of Johnson until some time after said seventeenth day of October, 1888. That on or about the first day of April, 1889, said defendant
“Plaintiff further states that there is due said mining company from said Hill the amount of said judgment above stated to have been rendered in favor of plaintiff against said mining company; and plaintiff states that on the first day of August, 1882, plaintiff was, and at all times thereafter until said October 17, 1888, remained, the owner of a'certain tract of land with the appurtenances situated in the county of Johnson and State of Missouri, to wit: The east half of the northwest quarter and the west half of the northeast quarter, and ten acres taken in a square in the southwest corner of the northeast quarter of the northeast quarter, and ten acres taken in a square in the northwest corner of the southeast quarter of the northeast quarter; 'all in section 19, township 4'6, range 24; also, the northwest quarter of the northwest quarter of section 19 in said township and range; also all of a certain tract of land, beginning at a point on the west line of section 18 in said township and range, fifty feet south of the center line of the Missouri Pacific Railway track; thence south along the west line of said section 18, eighty poles and sixteen links to the southwest corner of said section; thence along the south line of said section, two hundred and fifty-one poles to the southeast corner of the southwest quarter of the southeast quarter of said section last mentioned; thence north thirty-six poles and eighteen links to a stake fifty feet south of the center line of the Missouri' Pacific Railway tracks; thence northwestwardly along
This petition was filed in Johnson county, Missouri, and writs issued returnable to the next term of said court. The defendant James A. Hill was served with the writ in the city of St. Louis.
It was insisted by defendant J ames A. Hill that said court had no jurisdiction to try the allegations charging him as president of the company with waste and with misappropriation of funds, unless said causes of action against him as president were' properly united with the claim made against the other defendants for the unpaid balances on their subscriptions for stock. The demurrer is in these words:
“And now at this day comes James A. Hill, one of the defendants herein, for purpose of this demurrer only and not for the purpose of subjecting himself to the general jurisdiction of this court, for the reason that this court has no jurisdiction to determine any
“First. Because there is a misjoinder in-the parties defendant in this, that this defendant as president of the Johnson County Coal Miniüg Company is sought to be charged jointly with the other defendants as stockholders in said corporation between whom there is no joint liability alleged.
“Second. Because there is a misjoinder of causes of action in one and the same count, and the bill is multifarious in this, and it seeks to charge this defendant with acts done officially as president of said defendant corporation and to collect the outstanding indebtedness of stockholders of the last aforesaid corporation in one and the same action.”
The court below held that the separate causes of action set out were not properly united in the bill and for that reason sustained the demurrer. The plaintiff, as already stated, appealed from that decision.
I.- The sole question presented by this record is the propriety of the judgment of the circuit court holding the petition multifarious and sustaining the demurrer. In the .leading casó of Campbell v. Mackay, 1 Myl. and C. 603, 13 Condensed Eng. Ohcy. Repts. 543, Lord Cottenham, after reviewing the English cases, remarked that “to lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition, is, upon the authorities, impossible.” The decided cases since his lordship’s day do not render the solution of the question any the less difficult. Indeed, no rule of equity pleading has less of certainty and uniformity in its application; a result, doubtless owing to the variety of degrees of right and interest which enter into the affairs of life. The general definition given by this court in Clark et al. v. Ins. Co., 52 Mo.
Let us analyze the present bill. It avers the rendition of a judgment against the Johnson County Coal Company, a corporation organized under the laws of Missouri, for $60,000; the issuance of an execution and the collection thereby of $480.51 and a nulla bona return as to the balance of the judgment. It then proceeds to charge, first, that the capital stock of said corporation consisted of two hundred and fifty shares of the par value of $100 per share; that only $5 per share had ever been paid in by any of the stockholders, leaving $95 due on each share issued; that at the time of the commencement of the suit, defendant James A. Hill owned one hundred and fifty-four shares; William S. Hill, ten shares; the Missouri Pacific Railway Company, seventy-nine shares; McDowell, one share; Boyd, five shares; Speers, one share. That otherwise said corporation is insolvent. There is prayer thát said stockholders be decreed to pay the full amount of $95 per share on each of their said shares. Second, thei'e is then an averment that even if the stock is all paid up, there will not be enough to pay said judgment and then the bill proceeds to charge that said defendant James A. Hill is further indebted to said company in the sum of $10,000 for money taken by him as president from the assets of said company on a fraudulent claim of salary due him for services, which said Hill knew were of no value, and there is a prayer that said Hill individually be ordered to pay plaintiffs said$10,0.00 so fraudulently abstracted from the revenues of the company. Third, the bill further charges that the said judgment of $60,000 against the company was based upon the averment that-said company, its officers and
From the foregoing synopsis of the bill it is at once apparent that it embraces in one suit matters of distinct natures, necessitating distinct decrees, to wit, a claim against all the -stockholders, of whom James A. Hill is one, for the balance due on their stock (upon the well settled principle that these unpaid subscriptions are assets of the company), with two other claims against James A. Hill alone for his own individual fraud in wrongfully converting $10,000 of the assets of the company as salary to himself, and wantonly wasting the mine of plaintiffs while acting as president. Certainly it can not be made plainer that the ground of liability of the several stockholders as such, Jas. A. Hill included, rests upon grounds wholly distinct from the liability of James A. Hill for fraudulent conversion of moneys of the company as and for salary and for his individual waste. The stockholders other than Hill have no common interest with him in defending his individual speculations or torts. Their liability depends upon facts wholly independent of the facts which must be established to sustain the charges against Jas. A. Hill, and the bill alleges distinct grounds of liability as to each. This bill finds its prototype in Pope v. Leonard, 115 Mass. 286. In that case judgment creditors filed a bill against the officers
It can not be said that there is .a common right running through this bill against all the defendants. There is no charge of fraud against the stockholders as such. They are simply required to’pay up their unpaid subscriptions, each for himself. Then there comes the distinct allegation of fraud on the part of the president in wrongfully taking $10,000 of the assets as and for his salary, and the other charge of waste by the corporation under the direction of the president.
Now there is hot the slightest charge in the bill
These two last charges are as to them res inter alios actae, and render the bill multifarious. We find ample authority for holding the bill demurrable and no case which goes far enough to sustain so palpable a violation of the rule allowing the joinder of parties or separate matters.
The circuit court committed no error in sustaining the demurrer and its judgment is affirmed.