Calloway v. Glenn

• Decision Date: 11 February 1899
• Parties: CALLOWAY v. GLENN. [1]
• Court: Kentucky Court of Appeals

49 S.W. 440

105 Ky. 648

CALLOWAY v. GLENN. ^[1]

Court of Appeals of Kentucky.

February 11, 1899

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by John Glenn, trustee, against James F. Calloway, to enforce a judgment. Judgment for plaintiff, and defendant appeals. Affirmed.

W. S Pryor and J. C. Wickliffe, for appellant.

Helm &amp Bruce, for appellee.

PAYNTER J.

In 1865 the National Express & Transportation Company, a corporation was organized under the laws of the state of Virginia. The appellant, Calloway, subscribed for $2,500 of its capital stock. Only 20 per cent. of the stock seems to have been paid to the corporation by the subscribers. In 1866 it became insolvent, and made to certain persons an assignment of its property in trust for the benefit of its creditors. The trustees seem to have done nothing, or but little, towards executing the trust, and one of the creditors filed a bill in the chancery court of the city of Richmond, state of Virginia, to enforce it; and the court removed the trustees, and appointed John Glenn in their stead. The court ascertained the debts of the corporation, and adjudged that 80 per cent. of the stock subscriptions were unpaid, and that it was necessary to collect part of the unpaid stock for the payment of the claims of the creditors. To this proceeding the corporation and trustees were parties. As the officers of the corporation had failed to make a call, the court made the call of 30 per cent. upon the stock, with which to pay the debts. In July, 1883, the court authorized the trustee to accept a compromise of 25 per cent. of the indebtedness, so far as the stockholders might offer to pay same within the period of six months from the entry of the order. The trustee failed to give the appellant notice, because of his inability to ascertain his address; he having changed his residence from Virginia to Kentucky. In an action, filed in 1885, in the United States circuit court, the appellant was, in October, 1886, adjudged to pay the 30 per cent. of his subscription, as decreed in the chancery court, which he did. On March 26, 1886, the chancery court, in the case mentioned, adjudged that it was necessary to, and did, make an additional call of 50 per cent. on the stockholders, and the object of this action is to recover the amount of that assessment.

The question in this case is, what effect should be given to the judgment of the chancery court of the city of Richmond? If it is conclusive, then none of the defenses relied upon by the appellant are available. Judge Robertson, whose genius and erudition enabled him to write so luminously and perspicuously that every important legal question he discussed was made interesting, and was adorned by his pen did not allow his reputation to suffer in delivering the opinion in Williams v. Preston, 3 J. J. Marsh. 601, wherein he considered the faith and credit which should be given to judgments of courts in sister states, and said that they should be interpreted "so as to entitle the judgments and decrees of a co-state to precisely the same effect in any other state as it would have by the laws of the state where it had been rendered. If, therefore, this decree would be conclusive in Virginia, it must be conclusive here. If it be only prima facie evidence there, it is prima facie here. If it be void there, it is void here." This conclusion was correct, because section 1, art. 4, of the constitution of the United States, provides "that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," and, pursuant to that provision of the constitution, the congress enacted a law in which it is declared that records properly authenticated "shall have such faith and credit given to them in every court within the United States, as they have by any law or usage in the courts of the state from where the said records are or shall be taken." In Williams v. Preston it is said: "This court would not dispute a regular judgment, rendered by a competent court of another state according to her local laws, as expounded by her supreme authority, so far as it had the right to expound and settle them." The doctrine was announced in that case that a personal judgment rendered in Virginia against a defendant, a resident of this state, who was not served with a process in that state, or who had not entered his appearance to the...