Dabney v. Pappenheimer Co.

20 Ohio C.C. 707

• Court: Meigs Circuit Court
• Decided: October 15, 1888
• Status: Published

Opinion

BRADBURY, J.

This was an action instituted in the common pleas of Meigs county, Ohio, by the Pappenheimer Company, on Ohio corporation, against the Pomeroy Coal Company, another Ohio corporation, located in Meigs county, and a number of defendants who are alleged to be stockholders of the Pomeroy Coal Company, among them the plaintiff in error, Clara P. Dabney. The petition sets forth that plaintiff, the Pappenheimer Hardware Company, recovered a judgment against the Pomeroy Coal Company; that the execution issued on such judgment was returned “nulla bona;” avers that such coal company has no property subject to execution, and that it then was and ever since has been insolvent; that there are a number of other creditors of the said coal company enumerating them, whose, claims against the said company amount to about $250,000.00. It then avers that the following persons are the stockholders of the said coal company, etc., among them the defendant Clara P. Dabney, who is alleged to be the holder of 625 shares at $100 a share of the said corporation. The petition then proceeds to aver that by reason of the premises all of the stockholders of the Pomeroy Coal Company, defendants in this action, are liable to the plaintiff on behalf of himself and- the other creditors of the said coal company in a sum equal to the amount of the said stock owned by them, with interest, etc.; wherefore plaintiff prays that a master be appointed to ascertain who are stockholders of the said corporation, liable to its-creditors, the amount of stock held by each, the transfers of stock made, and who, if any, are insolvent, etc., and report to the court, and that plaintiff and all other creditors of the coal company recover a judgment against each of said stockholders for the amount of his or her respective liability thereon to the said plaintiff and all the other creditors of said coal company, and for all other relief, etc.

Plaintiff, by its attorney, W. H. Lasley, then filed an attachment with garnishment for money belonging to the nonresident defendant Clara Dabney in the hands of one Brown, a resident of Meigs county.

Attachment and garnishment was issued and duly executed, whereupon defendant Clara P. Dabney filed a motion to dismiss the attachment on the following grounds.

First — Because the said affidavit is untrue.

Second — Because no sufficient affidavit was made and filed for issuing the same.

Third — Because the said affidavit is not sufficient for the same, for other reasons.

This motion was heard and overruled, to which defendant excepted. Motion for new trial was then filed and overruled, to which ruling again the defendant excepted, and judgment was rendered against defendant. Dabney, by Sibley, J., of the common pleas, (now one of the judges of the circuit court of the fourth circuit.)

The case was taken to the circuit court on error, the errors assigned being (.1) that the court erred in refusing to discharge the attachment, issued in the court below, 'and (2) that the court erred in refusing to discharge the attachment. The circuit court affirmed the judgment of the common pleas at the October term, 1888, Judge Bradbury delivering the opinion orally, holding that an attachment would lie against a nonresident on his liability under the statute as a stockholder in an Ohio corporation.