Wilson v. California Wine Co.

95 Mich. 117 | Mich. | 1893

Long, J.

In May, 1889, -the defendants Quinn, Cunningham, Redmond, and Ives organized the California Wine Company, Avith a capital stock of $5,000, of Avhich 10 per cent, only Avas paid in. The shares were $25 each. Quinn and Cunningham had 99 shares each, and Redmond and Ives one each.

In July, 1890, the complainant recovered a judgment for $194.85 and $3 costs against the California Wine’Company, before a justice of the peace. A transcript of the judgment was filed in the circuit court, and execution issued, and returned unsatisfied-. This bill is filed asking for a receiver for the company, and that the individual defendants be compelled to pay up their subscriptions so far as necessary to -pay the debts. Proofs were taken in open court, and the bill dismissed, for the reason that the summons in justice’s court was not properly served.

The return was signed by the constable, and reads:

“I hereby certify that I have served the within-named defendant, California Wine Company, in the county of Kent, by giving a copy to James Quinn, president of said company, on the 7th day of July, 1890.”

It is not contended but that the return, upon its face, showed the service sufficient to give the justice jurisdiction; but in the present proceeding, under this bill, testimony was introduced to show that James Quinn was not the president of the company at the time of the service of the summons upon him. It is conceded by complainant’s counsel that the testimony may have this tendency; but claim is made that the defendants are estopped from now making that claim.

It appears that, at the time the summons was issued, plaintiff’s attorney therein directed the officer to serve the summons on Lawrence J. Quinn. The constable had had other summonses to serve in their matters, and advised the plaintiff’s attorney that he thought the service should be made upon James Quinn, but was fully instructed, notwithstanding that, by plaintiff’s attorney, to serve the summons upon Lawrence J. Quinn, and, following that direction, he did make such service. The officer testified that, when he delivered the copy of the summons. to Lawrence J. Quinn, he was told by him that he had nothing to do with the matter; that James Quinn was the man interested in the California Wine Company, and the summons should be delivered to him. The constable accordingly made another copy, and served it on James Quinn, and made his return in accordance with that fact. The officer further testified that defendant Cunningham told him that James Quinn was the person to be served with that summons. Defendant Cunningham at that time was the secretary, treasurer, and general manager of the company. Clearly, a more complete estoppel in fact could not be shown, and the testimony of the officer stands upon the record wholly uncontradicted. The court below was therefore in error in holding that the summons was not properly served. It was regular upon its face, and showed jurisdiction in the justice, and the defendants cannot be heard in this proceeding to set up that James Quinn was not president of the company at that time.¹

It is contended, further, that James Quinn was a necessary party to the bill. It appeared upon the hearing that he had no property out of which debts could be collected. It is undoubtedly true that the other defendants would have the right .to have all the solvent stockholders made parties defendant under the rule in Dunston v. Hoptonic Co., 83 Mich. 372, but it does not appear in the present proceeding that James Quinn has any property out of which the debts could be paid, or that he could be compelled to contribute to the company. In addition to this fact, the only evidence upon the record showing • or tending to show that James Quinn was ever a stockholder was i the fact of the service ujDon him of the summons, as president of the company.

Seyeral other questions are raised by counsel for defendants, but we do not think a discussion of them necessary, and they are overruled.

The decree of the court below, dismissing courplainanFs bill, will be' reversed, and decree entered here in accordance with the prayer of the bill.

The other Justices concurred.

1 defendants Ives and Redmond did not appear,