Bronson v. Wilmington N. C. Life Ins. Co.

• Decision Date: 31 October 1881
• Citation: 85 N.C. 411
• Court: North Carolina Supreme Court
• Parties: C. H. BRONSON v. WILMINGTON N. C. LIFE INSURANCE CO.

85 N.C. 411

C. H. BRONSON

v.WILMINGTON N. C. LIFE INSURANCE CO.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION tried at January Special Term, 1881, of SAMPSON Superior Court, before M cKoy, J.

The suit is brought by Charles H. Bronson and Edmund B. Owens, administrators of John E. Spearman, deceased, against the Wilmington North Carolina Life Insurance Company and its stockholders.The facts appear in the opinion.Demurrer overruled, judgment, appeal by defendant.

Messrs. J. L. Stewart and E. W. Kerr, for plaintiffs .

Mr. D. J. Devane, for defendant.

SMITH, C. J.

The plaintiffs having recovered judgment against the defendant corporation upon a debt due their intestate, and caused an ineffectual execution to issue to the county wherein is their principal place of business, on behalf of themselves and its other creditors, institute this action against the corporation and a large number of its stockholders to enforce payment out of such assets as it may possess, not accessible to the ordinary process of law, and especially out of the sums due for unpaid stock.The complaint alleges the organization of the company under an act of the general assembly, and a subsequent amendment fixing its capital stock at a minimum of $300,000, divided in shares of $100 each, whereof one-fifth was required to be paid in within nine months after its first meeting, and the residue in the form of stock notes secured by mortgage on real estate, or with adequate securities to be approved by the president and directors, and payable in sixty days after demand.It avers a failure of the stockholders for many years to elect directors, and the refusal of those last elected to make any assessment on the stock notes to meet the liabilities of the company, and discharge the said judgment due the plaintiffs, and that the defendants, and perhaps others whose names are unknown, are, and at the time of the recovery, were, stockholders in the company, and that it is impracticable, from their great number, and removals by death, to bring them all before the court, and the cause to a trial.The relief asked is that an account may be taken, and the amount due by the several stockholders for unpaid stock ascertained, and so much be required to be paid in as will be sufficient to discharge the indebtedness of the company, and for the appointment of a receiver.

To the complaint a separate demurrer is put in by the corporation, and a joint demurrer by the enumerated stockholders, on whom process has been served, more than eighty in number, and both assign as causes therefor:

1.For that the remedy by a new action is misconceived, and lies in proceedings supplementary to the execution in the original suit.

2.For that the complaint fails to specify the number of shares held by the respective stockholders who are made defendants, and whether any sum or how much is due from each on his subscription.

3.For that there are other stockholders, not made parties by the due service of process.

These objections to the prosecution of the action we proceed to consider.

I.The proceeding supplementary to the execution provided in sections 264 to 274 inclusive in the Code, is intended to perfect the creditor's remedy in the same action and to supersede that which in a divided jurisdiction was attainable before by a bill in equity.But this is not the prosecution of the same cause of action and between the same parties as the other.It is a new and independent suit instituted and conducted for the benefit of all the creditors against additional defendants whose indebtedness it proposes to call in and subject to the demands of creditors.Rand v. Rand,78 N. C., 12;McCaskill v. Lancashire,83 N. C., 393.A precedent for this mode of procedure will be found in Hughes v. Whitaker,84 N. C., 640.

II.The second assigned ground of demurrer is the omission of the complaint to set out...