39 Mich. 58 | Mich. | 1878
Lead Opinion
Plaintiff in error was sued on a labor debt, as a stockholder of the Michigan Iron Company, a corporation organized under the General Mining-law of 1853, which was adjudged a bankrupt in October, 1875. The debt sued on accrued previously.
The defendant in error recovered judgment in the court below, and error is alleged upon two grounds: first, that the remedy only lies against stockholders holding stock at the time of suit brought, and second, that the corporation was not joined as co-defendant.
Upon the first point it is not necessary to pass, as the testimony showed Mr. Tilden to have admitted his
The other question presents the inquiry, whether the act of 1877, revising the legislation on the subject of mining and manufacturing companies, and repealing the •old laws, has so operated as to change the remedy and require the corporation as well as the stockholder to be sued in the same action.
The law of 1853 provides that a liability may be enforced “against any stockholders by action founded on this statute, at any time after an execution shall be returned and not satisfied, or at any time after an adjudication in bankruptcy against such corporation.” Comp. L.} 1871, § 2852.
No form of action is prescribed, and the suit could be brought in common law form setting forth the facts by which the liability had been established. On such action an execution would at once have issued against •the stockholder sued.
The statute of 1877, 'repealing all the former acts with a saving clause of all. rights not inconsistent with the new act, contains the following provisions:
“The stockholders of all corporations existing hereunder shall be individually liable for all labor performed for such corporation, which said liability may be enforced by action in assumpsit commenced within two years from the time when payment .for such labor became due, and. not afterwards. Every action against any stockholder for labor heretofore performed for any such corporation shall be brought within two years after this act takes ■effect, and not afterwards, but this shall not be construed as reviving any cause. of action already barred by any statute of limitations, nor shall it include any cause of action, the right to sue "for which will expire in less than two years after- this act takes effect, by virtue of some existing statute of limitation. Suit for such labor may be commenced against any or all the
This action is in no sense a common law action in its incidents, although called an action of assumpsit,' and is purely statutory. It is not disputed that plaintiff below could have resorted to it. The question is whether he had lost his former remedy.
Under the old law he could sue either after execution unsatisfied pn a judgment against the company, or after its bankruptcy determined; and he could not sue otherwise. Of course if the company had not been put in one or the other of these predicaments no cause of action had accrued when the law of 1877 was passed, and its form of remedy was in some cases practically better and speedier than the old one. But in the present case the cause of action had completely accrued before the statute of 1877 was passed, and an action in common law form lay upon it. ' We see no reason why the permissive words of this statute should be regarded as mandatory, and as compelling as well as allowing a joinder of parties not before required, and a new suit in some cases, which would be of no possible use. The unsatisfied judgment on the decree in bankruptcy would both indicate the insolvency of the corporation and the fruitlessness of a new judgment or execution against it. We cannot ■ see that allowing an action to be brought against the stockholder alone under the fixed liability is in any way inconsistent with the permissive clause of the new law, and the reasons are all in favor of preserving the-old right, because some injustice would be done by postponing the issue of execution against the stockholder sued, which might work prejudice. And if the cause of' action depended, as it might have done, on the return of an execution unsatisfied before suing the stockholder,
We think plaintiff below had a right to enforce his remedy when the new law was passed, and that the new statute did not destroy it.
There is no error in the record, and the judgment must be affirmed with costs.
Dissenting Opinion
(dissenting). The conclusion of my brethren in this case leads to this: that the plaintiff has a choice of two remedies; one under the act of 1877 and one under the previous statute. I have not been able to satisfy myself that the previous remedy remained after that act was passed. That act very properly saved to all parties their existing rights, but it did not assume to save remedies; and as the new remedy was entirely ample, there was no special reason why it should.
Had suit been brought under the act of 1877 the corporation must have been joined as defendant to fix its liability, though its bankruptcy, I think, would have rendered unnecessary and futile the suing out of execution Against it.
