Bowen v. Fairfield

• Decision Date: 23 May 1927
• Citation: 157 N.E. 39,260 Mass. 38
• Parties: BOWEN v. FAIRFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 38

157 N.E. 39

BOWEN

v.FAIRFIELD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1927.

Report from Superior Court, Suffolk County; J. D. McLaughlin, Judge.

Action by William E. Bowen against Herbert G. Fairfield and others. On report after order allowing motion to amend a finding of auditor for plaintiff. Order allowing motion vacated, and judgment entered for defendants.

Francis Juggins and Mendon Morrill, both of Boston, for plaintiff.

L. M. Friedman, Louis B. King, and Friedman, Atherton, King & Turner, all of Boston, for defendant Fairfield.

CROSBY, J.

By writ dated July 25, 1917, the plaintiff brought an action in the superior court against the Dorchester Ice Company, a Massachusetts corporation. The corporation was dissolved by Sp. St. 1916, c. 112, which took effect on February 21, 1916. The existence of the corporation for purposes of prosecuting or defending suits came to an end, under St. 1903, c. 437, § 52, on February 21, 1919. This court held in Bowen v. Dorchester Ice Co., 255 Mass. 159, 150 N. E. 840, that the action was to be dismissed, not on the merits, but because of the dissolution of the corporate existenceof the defendant. Thornton v. Marginal Freight Railway, 123 Mass. 32;Boston Tow Boat Co. v. Medford National Bank, 228 Mass. 484, 486, 117 N. E. 928. The defendant Fairfield will hereafter be referred to as the defendant.

[1] On March 12, 1926, the plaintiff filed a motion to amend the action into a bill in equity. The motion was allowed by a judge of the superior court and the question before us is whether he had power to allow the motion. The action at law, as appears by the bill, was brought to recover from the ice company an indebtedness alleged to be due to the plaintiff. The case was referred to an auditor, who found that the plaintiff was entitled to recover the sum of $7,838.69. The case was then reported to this court.

[2]G. L. c. 231, § 55, provides that the Supreme Judicial Court or the superior court may, before final judgment, allow an amendment changing an action at law into a suit in equity or a suit in equity into an action at law, if it is necessary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought. The Dorchester Ice Company is not made a party to the suit in equity. The bill substitutes as a defendant one who was not a party to the litigation in the original action. It seeks to reach and apply property of the defendant Fairfield in satisfaction of the claim of the plaintiff against the ice company. It alleges that at the time of the dissolution of the corporation and previously thereto the defendant was the sole stockholder therein. In the absence of a statutory provision to that effect a stockholder is not liable to pay the debts of a corporation. Whiting v. Malden & Melrose Railroad, 202 Mass. 298, 304, 88 N. E. 907,132 Am. St. Rep. 493.

The original action was a proceeding in personam. The bill is in the nature of a proceeding in rem. It is a bill in substance to enforce a stockholder's liability for a debt of the corporation. No claim was made in the original action that the defendant was liable for the debt which was sought to be recovered against the corporation. It sets forth a new cause of...