Armour Fertilizer Works v. Parrish Vegetable & Fruit Co.

• Decision Date: 26 March 1912
• Citation: 63 Fla. 64,58 So. 231
• Parties: ARMOUR FERTILIZER WORKS v. PARRISH VEGETABLE & FRUIT CO. et al.
• Court: Florida Supreme Court

58 So. 231

63 Fla. 64

ARMOUR FERTILIZER WORKS v. PARRISH VEGETABLE & FRUIT CO. et al.

Florida Supreme Court

March 26, 1912

Error to Circuit Court, Manatee County; F. A. Whitney, Judge.

Action by Henry L. Coe against the Armour Fertilizer Works and Parrish Vegetable & Fruit Company to quash an execution. Judgment for petitioner, and the Armour Fertilizer Works brings error. Reversed.

Syllabus by the Court

SYLLABUS

The statutes and rules do not require any preliminary steps to be taken before an execution may be issued against a stockholder, to be enforeced 'to an extent equal in amount for so much as may remain unpaid upon his subscription to capital stock and no further,' after an execution against the corporation has been returned nulla bona.

A stockholder of a corporation becomes, as such, charged with knowledge that under the statute, upon the return of nulla bona upon an execution issued against the corporation, an execution may be issued against him for the unpaid subscription to the stock he holds.

Where an execution is issued under the statute against a person as a stockholder of a corporation, if such person is in fact not a holder of the corporate stock upon which there is unpaid subscription, or if the amount of the execution is in excess of the unpaid subscription, the person may have relief under the statute providing for testing the legality of executions.

COUNSEL Singeltary & Reaves, of Bradentown, for plaintiff in error.

Sparkman & Carter, of Tampa, for defendant in error.

OPINION

WHITFIELD C.J.

The plaintiff in error recovered a judgment in the circuit court for Manatee county against the Parrish Vegetable & Fruit Company. Execution on the judgment issued against the corporation was duly returned nulla bona. Thereupon an execution was issued under chapter 5892, Acts of 1909 against Henry L. Coe as one of the stockholders of the Parrish Vegetable & Fruit Company, a corporation, for an amount equal to the amount remaining unpaid upon the subscription of Henry L. Coe to the stock of said corporation; the execution against the corporation for its indebtedness having been returned nulla bona. Henry L. Coe then filed a petition in the same court, setting up the judgment against the corporation, the return of nulla bona thereon, and the issue of the execution against Coe as a stockholder of the judgment defendant corporation, and alleging 'that at the time of the application for the execution against your petitioner, and at the time of the issuance of the same, your petitioner was absent from the state of Florida, and had no notice of any kind or description of the application for the issuance of the execution against him, and received no notice thereof until long thereafter.

'Your petitioner prays this court that it will quash said execution for the following reasons, to wit:

'1. Because the issuance of said execution amounts to the taking of the property of your petitioner without due process of law.

'2. Because the statute of the state of Florida, under and by virtue of which said execution is issued, violates the Constitution of Florida, in this, to wit:

'(a) Because it denies to your petitioner due process of law;

'(b) Because it denies to your petitioner the equal protection of the laws, for the reason that the said statute does not provide for any notice to your petitioner before said execution issued, and denies to your petitioner his day in court.

'3. And your petitioner further shows that the said statute of the state of Florida is in violation of the fourteenth amendment to the Constitution of the United States, and particularly to that portion of said fourteenth amendment which provides that no state shall pass any law which denies to any person due process of law, or the equal protection of

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