| Ind. | May 15, 1879
This was an action by Maranda, against the appellants, to recover from them personally, as stockholders in a corporation known as the Union Draining Association, for work and labor performed by the plaintiff, for the company. The action seems to have been based upon the 16th section of the act of 1869 on the subject of the construction of levees, dikes and drains, etc., 3 Ind. Stat. 222, which provides that “ All members of any company which has been organized, or which shall be organized under the provisions of this act, shall be personally •liable for all debts contracted by the company for manual labor performed for the company.”
Judgment for the plaintiff.
Errors are assigned upon the rulings of the court in overruling a demurrer to the complaint, and in sustaining demurrers to the second, third and fourth paragraphs of answer.
The objection urged to the complaint is that it does not appear thereby that the appellants were members of the company at the time the debt in question was contracted.
The claim had been reduced to judgment against the company. There were two paragraphs in the complaint, each showing the insolvency of the company, in the first of which it was alleged “that all of said defendants, to
We think the allegation above set out sufficiently showed that-the defendants were members of the company at the time the debt in question was contracted.
It is also urged in the brief of counsel for the appellants that all of the members of the company should have been, but were not, made defendants to the action. 3STo such point was made in the court below, either by demurrer or answer, and it cannot be made here for the first time.
The second and third paragraphs of the defendants’ answer alleged, in substance, among other things, that the debt in question was contracted before the defendants became members of the coi’poration ; and it is insisted that, because of these allegations, the demurrers to the paragraphs should have been overruled. If the appellants were not liable for the debts of the corporation contracted before they became members, which would seem to be the case (see Williams v. Hanna, 40 Ind. 585), the point made is a material one. But the allegations were but an argumentative denial of what the plaintiff was bound to prove under the general denial, which was filed, viz., that the defendants were members of the company at the time the debt was contracted. The matter thus pleaded could have been given in evidence under the general denial, and, therefore, it wras not fatally erroneous to sustain the demun-er. To be sure, the general denial wras afterward withdrawn, but its -withdrawal could not make a ruling erroneous which was not so at the time it was made.
The fourth paragraph of answer sets up fraud and misrepresentation in procuring the defendants to become
"We find no error in the record.
The judgment below is affirmed, with costs.