Cady v. Smith

• Decision Date: 25 April 1882
• Citation: 12 N.W. 95,12 Neb. 628
• Parties: MARTIN CADY, APPELLANT, v. MONROE E. SMITH, AND ADELBERT J. CRITTENDEN, APPELLEES
• Court: Nebraska Supreme Court

12 N.W. 95

12 Neb. 628

MARTIN CADY, APPELLANT, v. MONROE E. SMITH, AND ADELBERT J. CRITTENDEN, APPELLEES

Supreme Court of Nebraska

April 25, 1882

APPEAL from Butler county. Tried below before POST, J.

AFFIRMED.

E. R Dean, for appellant.

Clinton Hart & Brewer, for appellees.

OPINION

MAXWELL, J.

This case grew out of the case of Smith & Crittenden v Steele, 8 Neb. 115. In that case an action was brought against the Alexis Mercantile Association and the stockholders, the parties being joined in one action. The question whether an action in that form could be maintained was not raised by demurrer, answer, or in any other manner. The plaintiffs in that action recovered judgment for a large amount against not only the corporation but the stockholders thereof, and as the corporate property seems to have been squandered the defendants herein have proceeded against the property of the stockholders. One E. W. Wright was a stockholder in such corporation, and the owner of the south one-half of the south-east one-fourth of sec. 28, in township 16 north, range 1 east, in Butler county, having entered the same as a homestead, the patent therefor being dated November 10th, 1875. In 1877 this land was attached in the suit of Smith & Crittenden v. Steele et al. , and afterwards, judgment being rendered in favor of the plaintiffs in that action, the land was ordered to be sold under the attachment. While that suit was pending Wright sold the land in dispute to the plaintiff, who now brings this action to enjoin a sale under the attachment. The action was dismissed in the court below, and the plaintiff now appeals to this court.

Section 136 of the chapter entitled Corporations, Comp. St., 156, provides that: "Every corporation hereafter created shall give notice annually in some newspaper printed in the county or counties in which the business is transacted, and in case there is no newspaper printed therein, then in the nearest paper in the state, of the amount of all the existing debts of the corporation, which notice shall be signed by the president and a majority of the directors; and if any corporation shall fail to do so, all the stockholders of the corporation shall be jointly and severally liable for all the debts of the corporation then existing, and for all that shall be contracted before such notice is given."

In Garrison v. Howe, 17 N.Y. 458, it was held that to make the parties liable the debt must have been contracted during a default, and that they were not personally...