Chandler v. Runnels

• Decision Date: 09 December 1933
• Docket Number: 31356.
• Parties: CHANDLER v. RUNNELS.
• Court: Kansas Supreme Court

27 P.2d 232

138 Kan. 673

CHANDLER v. RUNNELS.

No. 31356.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Petition not disclosing on its face that cause of action is barred by statute of limitations is not demurrable on that ground.

In action instituted on October 15, 1931, against resident of state to collect statutory liability on stock in foreign corporation, petition disclosing that it was based on statute requiring action to be commenced within six months after passage of statute and that statute was passed in 1931 but not disclosing date of passage held not demurrable on ground that action was barred by limitations (Minn. St. 1927, §§ 8027, 8028, as amended by Laws 1931, c. 205).

Where a petition does not disclose upon its face that the cause of action is barred by the statute of limitations, a demurrer to the petition on that ground should be overruled.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by M. D. Chandler, receiver of the Diamond Motor Parts Company, against Sarah J. Runnels. From a judgment overruling a demurrer to the petition, defendant appeals.

Geo. A Jeffery and O. A. Keach, both of Wichita, for appellant.

E. L Foulke, Roy H. Wasson, and Clair E. Robb, all of Wichita, for appellee.

SMITH Justice.

This is an action to collect the statutory liability on stock in a Minnesota corporation owned by a resident of Kansas. A demurrer to the petition was overruled. Defendant appeals.

The petition alleged that on the 23d day of January, 1929, an action was commenced in the United States District Court for Minnesota, claiming insolvency of the Diamond Motor Parts Company, a Minnesota corporation, and praying for the appointment of a receiver. The petition then alleged the appointment of a receiver on the same date; that on or about July 10, 1931, the receiver prayed the United States District Court for an order making an assessment upon all persons liable as stockholders of the corporation, as provided for in the Constitution of Minnesota; that notice of a hearing upon the application was served upon the stockholders, including this defendant, and that the United States District Court made an order, a copy of which was attached to the petition. It should be noted that this order recited the facts and made a levy upon each stockholder of $1 a share. The petition then alleged that a copy of the order was mailed to each stockholder. The petition then alleged that plaintiff was authorized to bring suit against all the stockholders by reason of the statutes of Minnesota as set out in Mason's Minnesota Statutes 1927, in sections 8027 and 8028, as amended in part by chapter 205 of the Session Laws of Minnesota for 1931. The petition then quoted the statute. The statute provided that the order should authorize the receiver to bring suit against the stockholders to collect the assessment wherever found. Section 8028 provided for the bringing of the suit unless the receiver should report to the court that a stockholder was insolvent. The section then contained the following language: "provided that no action shall be commenced to collect the amount of any such assessment, unless commenced within two years after the insolvency of the corporation, and the appointment of a receiver or assignee, or in the event that the insolvency of such corporation, and the appointment of such receiver or assignee occurred more than eighteen months prior to the passage of this act then within six months after the passage of this act."

This action was commenced on the 15th day of October, 1931. The receiver for the Diamond Motor Company was appointed on January 23, 1929. It will be noted that more than two years elapsed after the appointment of the receiver. This is pointed out by defendant and is relied upon as a reason the demurrer should be sustained. And as to the provision that where the appointment of the receiver occurred more than eighteen months prior to the passage of the act the action could be commenced within six months after the passage of the act, defendant argues that where a plaintiff seeks to take advantage of an exception in a statute he must plead facts sufficient to show that his cause of...