Brown v. Fisk

23 F. 228, 1885 U.S. App. LEXIS 1904

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: March 20, 1885
• Status: Published

Opinion

Treat, J., (orally.)

This is an action brought by a judgment creditor of a railroad corporation against the defendant, as a stockholder, for the amount due from him on unpaid stock. The original judgment was had in the circuit court of Gape Girardeau county. This suit is an independent action brought by the judgment creditor against this stockholder in the St. Louis circuit court,—an ordinary action at law. Matters of this nature are cognizable in equity, and only in equity, unless there is some statutory proceeding with respect thereto. That has been fully determined, notably in a case in 106 U. S. Patterson v. Lynde, 106 U. S. 519; S. C. 1 Sup. Ct. Rep. 432.

Now, the Missouri statute has two provisions:

(1) Execution having been returned nulla bona, to cite in a stockholder and award what is in the nature of a judgment, that is a new execution against him for the portion of the stock unpaid. But that must bo done in the court' where the original judgment was rendered. (2) There is another provision that, where the corporation is dissolved, you may proceed by an independent suit.

Now, nothing of the kind has occurred in this caso. The party has no standing under the statute at all, nor has he pursued the remedy which the statute prescribes. So far, then, as this court is concerned, a common-law action cannot be tried in this way against a stockholder of an undissoived corporation.

Demurrer sustained, and judgment entered fot defendant.