W. E. A. Legg & Co. v. Dewing

60 A. 1066, 27 R.I. 126, 1905 R.I. LEXIS 43

Opinion

Per Curiam.

(1) The fifth ground of demurrer must be sustained. The statute only gives an action against the stockholder to a judgment creditor of the corporation. Gen. Laws cap. 180, § 22. The court said in Kilton, Warren & Co., v. Providence Tool Co., 22 R. I. 605: “The second clause of the section clearly implies that the judgment against the corporation shall precede the action or suit against the stockholders.” See also Fourth National Bank of New York v. Francklyn, 120 U. S. 747.

The case of Andrews v. O’Reilly, 25 R. I. 231, was brought by a judgment creditor,'and the question was whether he must not only have obtained a judgment against the corporation but likewise have levied or attempted to levy his execution thereon before he could proceed against the stockholder. The court did not decide that judgment against, the corporation was unnecessary, and no such contention was made in the argument.

This ground of demurrer is decisive of the whole case, and we need not consider the other objections which affect the formal sufficiency of the complainant’s statement of his case.