185 So. 48 | La. Ct. App. | 1938
Citation and service of the petition was not obtained against either Edwin B. Fabacher, Inc., or E. B. Fabacher. However, Rosenthal and Greenblatt, the other two defendants, were duly cited and appeared. They filed an exception of no right or cause of action to plaintiff's petition which was sustained by the trial judge. Plaintiff has appealed from the adverse decision.
The basis of defendants' exception of no right of action is that they, as stockholders of Edwin B. Fabacher, Inc., are not personally liable for the debts of the corporation and that the plaintiff's only remedy is to proceed against the corporation itself.
We cannot agree with the contention, since the Supreme Court has definitely decided to the contrary in Fudickar v. Inabnet,
In the case at bar, plaintiff has alleged that he is a creditor of the corporation; that the company has been liquidated and that the defendants in suit have received all of its assets. Under such circumstances, if the liquidators have been discharged and the affairs of the company wound up, the plaintiff would have a right without a remedy unless he was permitted to proceed against the shareholders who are the beneficiaries of the liquidators' failure to pay the just debts of the company.
The cases relied upon by the defendants, in support of their plea, namely, Allen v. Cochran,
The exception of no right of action was therefore improperly sustained and the same is hereby overruled.
For the reasons assigned, the judgment appealed from is reversed and it is now ordered that this cause be remanded to the First City Court of New Orleans for further proceedings according to law and consistent with the views herein expressed. Costs of this appeal to be paid by the appellees, other costs to await the final determination of the case.
Reversed and remanded.
JANVIER, J., absent, takes no part.