Bish v. Johnson

21 Ind. 299

• Court: Indiana Supreme Court
• Decided: November 15, 1863
• Status: Published

Opinion

Per Curiam.

In this case proceedings supplementary to execution were instituted by appellants against the Cincinnati and Chicago Railroad Company and the Cincinnati, Newcastle and Michigan Railroad Company, and also against said appellee, to subject to the payment of judgments obtained by the appellants against said corporations, the proceeds of certain stock subscriptions made by said Johnson to the capital stock of the latter company, and remaining unpaid.

It is averred that the said subscription was made in March, 1853; that in April, 1854, said company last above named consolidated with the Cincinnati, Cambridge and Chicago Short Line Railroad Company, under the name first above set forth, and that afterwards, in 1854, said company and the Cincinnati, Logansport and Chicago Railroad Company consolidated under the name first above set forth.

These facts appear in the complaint. An answer was filed by said Johnson, the second paragraph of which avers that the judgments, of which payment is sought, were obtained after said consolidations, and that said consolidations were “made against his wishes and consent.” A demurrer was Overruled to said second paragraph of the answer, which presents the only point in the case. This subscription was made after the act of February 23, 1853, authorizing the consolidation of railroad companies, and consequently must be viewed as having been made with reference to the said authority so conferred upon said corporations. Previous to the passage of said act it had been repeatedly held that a consolidation, without the consent of the stockholder, released him, &c. McCray v. The Junction Railroad Company, 9 Ind. 358; Booe v. The Same, 10 Ind. 93.

J. Brownlee, for the appellants.

The judgment is reversed, with costs. Cause remanded.