Schofield v. Doray

Belcher, C.

— This case is similar in character to that of Chapman v. Doray, ante, p. 52, just decided. The pleadings are the same, except that the penalty sought to be recovered here was for the failure to make and post, on the first Monday of August, 1889, the reports and accounts current for the previous month, while the failures alleged in Chapman v. Doray, ante, p. 52, were for the months of January to July, inclusive, for the same year. Judgment in both cases was rendered on the same day, and the proceedings up to judgment were similar. In this case, after judgment had been rendered in Chapman v. Doray, ante, p. 52, and before judgment herein, the defendant asked leave of the court to file an amended answer, to enable him to plead the recovery and judgment in the other case as a bar to a recovery here. The court denied the motion, and the defendant excepted. Judgment was then entered, from which the defendant appeals on a bill of exceptions.

The same points are made here for a reversal of the judgment as were made in Chapman v. Doray, ante, p. 52; and on the authority of the decision in that case they must be overruled.

It is further urged that the court erred in denying the defendant’s application to amend his answer. We see no error in this ruling. The proposed answer would have presented no defense. Each failure is a delinquency for which an action may be maintained. It is true than when the stockholders forbear to sue till after several failures have occurred, only one penalty can be recovered up to the time such forbearance ceases and the suit is brought. (Loveland v. Garner, 71 Cal. 541.) But an action may be maintained for such delinquency as it occurs.

We advise that the judgment be affirmed.

Foote, C., and Vancliee, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.

Rehearing denied.