Guaranty Trust Co. v. Scoon

This is a second appeal by the same parties in a suit by the receiver of an insolvent corporation, not organized for banking or insurance purposes, upon order of court to collect unpaid stock subscriptions to meet the debts of the corporation and the expenses of the receivership. On the former appeal, the total amounts allowed by the trial court as debts due by the corporation were substantially reduced by this court to specified amounts; and the direction in that decision was that the trial court, to the extent of the reductions made, should modify its order,

". . . to the end that the receiver may demand from the stockholders such an amount only as is necessary to satisfy the valid claims, as allowed by us, and for the expenses of the receivership."

Upon the case going back to the superior court, and upon the complaint of the receiver, the directions of this court were complied with; and upon notice given and hearing had, at which these appellants appeared, the amount to be paid by each was fixed by order of the court. The amounts thus fixed were refused to be paid by the appellants upon demand of the receiver, whereupon judgment was entered separately against each of them for the amount fixed by the order of the court. The present appeals are from that judgment.

As argued here, appellants jointly present their assignments of error under four headings:

[1] (1) That the action is barred by the statute of limitations. We have adopted the rule in this state that it is a condition precedent to a suit by the receiver of an insolvent corporation to collect unpaid stock subscriptions that an opportunity be given to stockholders to be heard upon the validity of claims against the corporation, and that an order thereon be made directing payment or suit to collect the protanto amount to be collected from each stockholder. Rea v.Eslick, 87 Wn. 125, 151 P. 256, and cases cited. Until that hearing and order, there is no cause of action that can be definitely stated, and until then the statute of limitations does not commence to run. That was not done in this case, nor was the decree of the solvency itself entered other than at a time less than six years before the complaint upon which was entered the judgment now appealed from.

[2] Contrary to appellants' contention, the six-year statute of limitation applies in this case. While it is true the state constitution, Art. 12, § 4, provides for the liability of stockholders in this kind of a corporation for the debts of the corporation to the amount of their unpaid stock and no more, the liability against these appellants sought to be enforced in this action is not a statutory one, as defined in the two-year statute of limitations, but arises from their subscriptions for the stock of the corporation. Their subscriptions were made, it is true, with reference to the provisions of the constitution then in force, the terms of which became a part of their contracts or subscriptions for the capital stock. Thomas v. Kalbfus, 97 Ohio St. 232, 119 N.E. 412. But the cause of action is on the subscription contract.

[3] (2) That fraud was practiced upon them in procuring their subscriptions to the capital stock of the corporation. It appears, however, that they were subscribers at the origin of the corporation and nearly or quite all of them made part payments on their stock by the surrender of stock they held at that time in the predecessor of this corporation, the preceding corporation having sold all of its assets to the present corporation. They have stood silent too long to be heard in this respect. Under such circumstances, that defense is not available to them in a suit by the receiver. Cox v. Dickie, 48 Wn. 264, 93 P. 523. Nor is the claim that the stock was not all fully subscribed available as a defense in a receiver suit. Cox v. Dickie,supra. As we understand it, these debts of the corporation were incurred after these appellants became stockholders.

[4] Some further contention is made on behalf of the appellants concerning equities against the creditors. There are no creditors whose claims are involved and for whose benefit the judgment appealed from was entered, except those mentioned in our former decision in this case. It is too late now for the appellants, who were appellants then, to question that decision and the judgment on it in that respect. It has become the law of this case and those claims in the amounts stated have become settled as valid claims against the insolvent corporation, so far as the rights of these appellants are concerned.

[5] (3) That there should have been no judgment against the R.H. Wilkinson estate. The record shows he was an original party defendant when the present action was commenced and was served with summons and complaint and appeared in the action. Thereafter he died and the duly appointed executrix of his estate was substituted for him, and personally as such executrix was served with a summons and complaint in the action. Thereafter, upon stipulation of the parties approved by the probate department of the superior court, the case proceeded against her as such executrix. There was no error in the judgment simply because a formal verified claim was not presented to the executrix. The estate had its day in court.

(4) That there were compromises or settlements. This is in no way discussed in the brief or otherwise in behalf of appellants and we treat it as abandoned by them.

Affirmed.

MACKINTOSH, C.J., FULLERTON, FRENCH, and MAIN, JJ., concur.