Nevin v. Akron Engineering Co.

Summit Circuit Court

Nevin v. Akron Engineering Co.

33 Ohio C.C. Dec. 9, 18 Ohio C.C. (n.s.) 237, 1908 Ohio Misc. LEXIS 349

DecidedOctober 8, 1908

StatusPublished

This text of 33 Ohio C.C. Dec. 9 (Nevin v. Akron Engineering Co.) is published on Counsel Stack Legal Research, covering Summit Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nevin v. Akron Engineering Co., 33 Ohio C.C. Dec. 9, 18 Ohio C.C. (n.s.) 237, 1908 Ohio Misc. LEXIS 349 (Ohio Super. Ct. 1908).

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Opinion

HENRY, J.

This action to enforce stockholder’s liability was not begun within the eighteen months succeeding the voluntary dissolution of the defendant company, under Sec. 5674a R. S. (Sec. 8740 G. C. et seq.), and the filing with the secretary of state a certificate thereof under Sec. 2780-31 R. S. (Sec. 11974 G. C.), but it was begun within eighteen months after plaintiff’s claim was reduced to judgment and execution thereon returned unsatisfied. Under See. 3258a R. S. (Sec. 8688 G. 0.), it must have been begun, if at all, within eighteen months after plaintiff’s claim against the corporation was in a condition to assert it against its stockholders.

The rule established by our Supreme Court, and subsequently observed by this court sitting in Cuyahoga county, in the case of Scofield v. Excelsior Oil Co., 27 O. C. C. 347 (6 N. S. 169), precludes the assertion of any such claim against the stockholders of a corporation, however notoriously insolvent and out of business it may be, unless actually subjected to judicial liquidation, without the reduction of such claim to judgment against the corporation and the fruitless issue of execution thereon. This course was permitted in that case to be pursued pending the action, but the right to maintain the action was conditioned upon the observance of that procedure. On the facts, the plight of the defendant corporation here became very similar to- that of the Excelsior Oil Co. We can not say here, any more than we [10]*10could there, that the cause of action against the stockholders accrued prior to the return of execution unsatisfied on judgment rendered in favor of the plaintiff and against the corporation.

The voluntary dissolution under the statute can not alter the case, for the sections above referred to expressly confer this right of voluntary dissolution only on solvent corporations which have paid, or suppose themselves to have paid, all their debts. There is no presumption whatever of corporate insolvency or of the necessity of creditors’ recourse to stockholders’ liability in such cases.

We think the present action is not barred but was seasonably commenced, and an interlocutory decree may be taken accordingly as usual in such cases.

Winch and Marvin, JJ., concur.

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HENRY, J.

This action to enforce stockholder’s liability was not begun within the eighteen months succeeding the voluntary dissolution of the defendant company, under Sec. 5674a R. S. (Sec. 8740 G. C. et seq.), and the filing with the secretary of state a certificate thereof under Sec. 2780-31 R. S. (Sec. 11974 G. C.), but it was begun within eighteen months after plaintiff’s claim was reduced to judgment and execution thereon returned unsatisfied. Under See. 3258a R. S. (Sec. 8688 G. 0.), it must have been begun, if at all, within eighteen months after plaintiff’s claim against the corporation was in a condition to assert it against its stockholders.

The rule established by our Supreme Court, and subsequently observed by this court sitting in Cuyahoga county, in the case of Scofield v. Excelsior Oil Co., 27 O. C. C. 347 (6 N. S. 169), precludes the assertion of any such claim against the stockholders of a corporation, however notoriously insolvent and out of business it may be, unless actually subjected to judicial liquidation, without the reduction of such claim to judgment against the corporation and the fruitless issue of execution thereon. This course was permitted in that case to be pursued pending the action, but the right to maintain the action was conditioned upon the observance of that procedure. On the facts, the plight of the defendant corporation here became very similar to- that of the Excelsior Oil Co. We can not say here, any more than we [10]*10could there, that the cause of action against the stockholders accrued prior to the return of execution unsatisfied on judgment rendered in favor of the plaintiff and against the corporation.

The voluntary dissolution under the statute can not alter the case, for the sections above referred to expressly confer this right of voluntary dissolution only on solvent corporations which have paid, or suppose themselves to have paid, all their debts. There is no presumption whatever of corporate insolvency or of the necessity of creditors’ recourse to stockholders’ liability in such cases.

We think the present action is not barred but was seasonably commenced, and an interlocutory decree may be taken accordingly as usual in such cases.

Winch and Marvin, JJ., concur.

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33 Ohio C.C. Dec. 9, 18 Ohio C.C. (n.s.) 237, 1908 Ohio Misc. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevin-v-akron-engineering-co-ohcirctsummit-1908.