59 P. 725 | Kan. | 1900
The opinion of the court was delivered by
These proceedings involve the same facts, and therefore they may be considered together and disposed of in a single opinion.
On April 11, 1891, David E. Gurney obtained a judgment in the district court of Wyandotte county against the Kansas City Radiator and Iron Foundry Company for $25,743.77. Afterward an execution was issued, which was returned May 12, 1891, wholly unsatisfied, for the reason that no property of the corporation could be found by the sheriff whereon to levy it. On June 12, 1891, Gurney filed separate motions against John Steffins and thirteen others to enforce their individual liabilities as stockholders. That they were stockholders was not denied, but they set up other defenses, among which was an attack on the validity of the judgment.
At the same time and for the same reasons, but in a separate action, they obtained from the probate court a temporary injunction restraining further proceedings against them as stockholders. Soon afterward the injunction was dissolved by the district court, and to reverse that ruling they brought the case to this court. It was reached on October 6, 1896, and dismissed, which in effect affirmed the order dissolving the injunction. While that case was pending here, the district court declined to proceed further with the motions or to try the merits of the injunction
The first point made here is that the court erred in not striking the motions from the files because they were not filed in or treated as a part of the original action against the corporation. In this ruling there was no error. It has already been determined that a proceeding to enforce a stockholder’s liability “is independent of the action in which the judgment was rendered — not a continuation of it, nor interlocutory or auxiliary to it.” (Schnack v. Boyd, 59 Kan. 275, 52 Pac. 874 ; Howell v. Manglesdorf, 33 id. 196, 5 Pac. 759.)
Objection is made to a ruling refusing to exclude the testimony of a witness that some old and discarded radiators stored in Missouri were valueless. This is not a ground for reversal. The value of the property was trifling, and, besides, it was beyond the reach of the execution held by the Kansas sheriff. The liability of a stockholder arises when a judgment has been rendered against a corporation and an execution returned thereon of “no property found.” “In the absence of fraud on the part of the sheriff, we think that the truth of a return of ‘ no property found ’ on an execution cannot be contested in an action brought to charge a stockholder of a corporation with the statutory liability.” (Thompson v. Pfeiffer, 60 Kan. 409, 56 Pac. 763 ; Hoyt v. Bunker, 50 id. 574, 32 Pac. 126 ; Sleeper v. Norris, 59 id. 555, 53 Pac. 757 ; Bank v. Milling Co., 59 id. 654, 54 Pac. 681.)
An unsuccessful attempt was made to impeach the judgment against the corporation. It is contended that the officers of the corporation had no power to execute notes for the company, and that Gurney did
There was a further claim that the judgment had been satisfied, and this upon the ground that a guarantor of the payment of the debt had provided security for its payment. The provision made, however, was no more than security, and it was expressly stipulated that it should not operate as a payment of the debt. Under the arrangement, the creditor was required to proceed first against the stockholders of the corporation, but the controlling fact is that the provision made was intended as a protection for the surety, and not as a payment.
The final contention is that proceedings upon the judgment were barred by the lapse of time, and that the court was not warranted in ordering executions.
Pinal action was had in these proceedings in June, 1897, more than six years after the execution was issued, and no formal revivor has been had. Proceedings to enforce the judgment, or, rather, to obtain an execution of the same, were promptly begun within a month after the execution was issued, 'and these proceedings have been pending ever since. The delay has been occasioned by the contention and resistance of the stockholders. All the intervening time the judgment creditor was endeavoring to enforce the judgment, and it was used in these proceedings as a basis for affirmative relief against the stockholders. In such cases there is no necessity for a formal revivor, and no statute of limitations can run against those diligently endeavoring to enforce the judgment pending the litigation. (Kothman v. Skaggs, 29 Kan. 5.)
The judgment of the district court will be affirmed.