73 P. 909 | Kan. | 1903
The opinion of the court was delivered by
On December 20, 1897, the Remington Paper Company recovered a judgment in the district court of Shawnee county against the Topeka Capital
The principal contentions of plaintiff in error, presented under various specifications, are (1) that by instituting the proceeding to enforce the judgment of December 20,1897, under the provisions of said paragraph 1192, plaintiff elected to pursue such method to the exclusion of that by action upon the original claim, based upon the fact that the corporation had ceased business for a year; and (2) that no recovery could'be had in the present proceeding because it was based upon the notes, and these were merged in the judgment of May 3, 1900, and therefore would no longer support an action.
To maintain these positions reliance is chiefly placed upon the case of Remington v. Hudson, 64 Kan. 43, 67 Pac. 636. There the plaintiff, after obtaining judgment against the corporation, causing an execution to be issued and returned nulla bona, and, instituting' a suit to charge a stockholder with the amount of the judgment, sought to amend its pleading so as to convert the proceeding into an action upon the notes against the stockholder, under the statute authorizing such a suit in case of the dissolution of the corporation by the ¿suspension of business for a year. It was held that this change could not be made. In the opinion it was said :
‘ ‘ It is plain to be seen that the pleader stated different grounds of recovery, and the two remedies which he sought were based on entirely different rights. They were dissimilar and inconsistent, and being based on repugnant theories, the election of one of them is necessarily a bar to the subsequent adoption of the other. (Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665.)
“Apart from the consideration that the election of*602 one of two remedies predicated upon conflicting theories operated as a bar, there was the further matter that the notes set up in the stricken counts had lost their vitality and force because they had become merged in the judgment. When they passed into judgment they ceased to exist for any purpose, and cannot be used again as a basis of recovery.” (Page 46.)
The present case, however, presents a very different situation. The proceeding under paragraph 1192 was begun at a time when plaintiff had a judgment against the corporation. In selecting this method the plaintiff assumed, as for such purpose it had a right to do, that the judgment was valid and would be upheld. More than that, its proceeding depended absolutely upon the judgment, as much so as if it had been brought in the form of an application for an order for an execution upon the judgment. Without the judgment it could have no existence. It was practically, for the purposes here involved, a supplemental proceeding for which the judgment and the unsatisfied execution were prerequisite. When the judgment was reversed the whole proceeding fell to the ground. The situation became as though there had never been a judgment. Nor could any subsequent rendition of judgment revive the first judgment or reinstate any part of the proceedings based upon it. If plaintiff desired to pursue the same method further, it was incumbent upon it to begin anew after the rendition of a second judgment and the issuance and return of a second execution. The reversal of the judgment placed the parties just where they were before it was rendered and afforded the plaintiff the same opportunity to make an election of remedies that it had then had. It was again free to pursue either method. The case falls within the reason, if not the letter, of the familiar rule stated in 7 Encyclopedia of Pleading
Now, does the fact that the notes were merged in a judgment after the action was commenced defeat a recovery. In the case of Remington v. Hudson, supra, the plaintiff was denied the right virtually to begin a new action based upon notes already placed in judgment and thereby extinguished. In the present case the action was begun while the notes were still in force. While it was based upon them in the sense that allegations of their existence formed an essential part of the petition, the action was not one upon the notes in the ordinary meaning of the expression. It was upon a liability created by statute (although’contractual in its nature ), as is illustrated by the fact that the three-year statute of limitations applies to it. The notes alone could not make a cause of action against defendant. It was necessary to plead as well the facts that he was a stockholder whose statutory obligations to the creditors of the corporation had not been fully performed, and that the corporation was for the purposes of the suit dissolved by a cessation of business for more than one year. It is true that the petition declared upon as many separate causes of action as there were notes, and that after the judgment was rendered on the notes there could not have been more than one cause of action, but this consideration could not in any way have prejudicially affected the substantial rights of defendant. Whether it was necessary for the plaintiff in the first instance to plead in separate counts, and whether it would have been better practice for it to have filed a supplemental petition setting
The trial court held that the fact that the notes were shown by the pleadings to have been placed in judgment against the corporation cut off any attack by the stockholder upon the validity of the debt. Defendant complains of this ruling and contends that such effect is only to be given the judgment in a suit brought explicitly upon it, and not in such a case as is here presented. No reason is perceived why the adjudication is not as binding in the one case as in the other. The argument presented in Ball v. Reese, 58 Kan. 614, 50 Pac. 875, 62 Am. St. Rep. 638, seems to apply to each with equal force.
A final contention of plaintiff in error is that the pleadings show that the Remington company, not having filed any statement with the secretary of state, as required by section 1283, General Statutes of 1901, was precluded by the last sentence of that section from maintaining any action in the courts of this state. This sentence reads :
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.”
The statement referred to is required to be filed by
The judgment is affirmed.