Douglass v. Loftus

• Decision Date: 11 November 1911
• Docket Number: 17,213
• Citation: 85 Kan. 720,119 P. 74
• Parties: CHARLOTTE B. DOUGLASS, as Executrix, etc., Appellant, v. MARY R. LOFTUS, Individually and as Administratrix, etc., et al., Appellees
• Court: Kansas Supreme Court

119 P. 74

85 Kan. 720

CHARLOTTE B. DOUGLASS, as Executrix, etc., Appellant, v. MARY R. LOFTUS, Individually and as Administratrix, etc., et al., Appellees

No. 17,213

Supreme Court of Kansas

November 11, 1911

Decided July, 1911.

Appeal from Leavenworth district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS--Trespass to Real Estate--Tort--Contract. A judgment for damages for a trespass to real estate where the tort benefited the tort feasor's estate to the full extent of the actual damages recovered by the injured party is not a judgment upon a tort pure and simple, but upon a cause of action so far contractual as to bring the judgment within the protection of the provisions of the federal constitution against legislation impairing the obligation of a contract.

2. STOCKHOLDERS--When Liability Attaches. Where such a judgment was rendered against a corporation June 30, 1906 upon a cause of action which accrued prior to 1899, neither the statute of 1898 (Laws 1898, ch. 10, § 14), which took effect January 11, 1899, changing the remedy of a stockholder from a single action to an action by a receiver; nor the act of 1903 (Laws 1903, ch. 152) repealing all provisions for enforcing the liability of stockholders; nor the constitutional amendment of 1906 limiting the stockholder's liability to the amount of the stock owned by him, deprived the judgment creditor of the right to maintain a suit on such judgment against a stockholder under the statute as it existed at the time the cause of action accrued.

3. STOCKHOLDERS--Same. The right of the judgment creditor in the case mentioned in the preceding paragraph to maintain such an action is preserved by the general saving clause (Gen. Stat. 1909, § 9037, subdiv. 1), which provides that the repeal of a statute shall not affect any right which accrued under it, although no action or proceeding was commenced for the enforcement of such judgment until after the repeal of the statute.

4. STOCKHOLDER'S LIABILITY--Revivor of Judgment Unnecessary. The revivor of a judgment against a corporation is unnecessary in order to maintain a suit to collect the amount thereof from a stockholder. It is still evidence of the validity, character and amount of the creditor's claim.

5. LIABILITY--Of Estate of Deceased Stockholder--Heirs. The estate of a deceased stockholder is liable upon stock held and owned by him in the same way and to the same extent that he was liable in his lifetime. The heirs at law or devisees of a deceased stockholder are liable in a suit upon a judgment rendered against the company after the stockholder's death to the extent of the property inherited by or devised to them.

6. JUDGMENT--Execution--Action Against Stockholder--Laches. A judgment was rendered against a corporation June 30, 1906. Execution issued February 15, 1907, and was returned unsatisfied for want of property on which to levy. Held, (1) there was no unreasonable delay in the issuance of an execution; (2) the right to maintain an action against a stockholder upon the judgment accrued upon the return of the execution unsatisfied; (3) the judgment creditor had three years thereafter in which to begin an action to enforce the judgment against a stockholder; (4) the claim of a judgment creditor of the corporation against the estate of a deceased stockholder is not provable in the probate court until it has been reduced to judgment against the estate, and the limitation contained in the executors' and administrators' act has no application to such a claim.

Frank Doster, and A. E. Dempsey, for the appellant.

W. W. Hooper, W. Littlefield, and Thomas J. White, for appellees Clarence Ryan, Mary Drechsel and Anna Peek.

OPINION

PORTER, J.:

In this suit Mrs. Douglass, as executrix of her husband's estate, seeks to recover from certain stockholders of the Leavenworth Coal Company the amount of a judgment against the company in favor of her husband rendered in his lifetime. The petition recites that for a long time prior to 1899 the Leavenworth Coal Company, by means of subterranean and hidden tunnels and underground workings had secretly trespassed upon and into the coal beds on the land of John C. Douglass, and had carried away and converted his coal to its own use; that in 1899 and 1900 he had brought two actions against the company for damages for such trespass and conversion; that these actions were consolidated and a trial was had, resulting in a judgment in his favor, on June 30, 1906, for sixty-seven thousand, three hundred eighty-seven and 50/100 dollars ($ 67,387.50) damages and costs, and that on February 15, 1907, an execution on the judgment issued against the coal company, which was returned unsatisfied.

The petition then alleges that Matthew Ryan, Sr., who died on the 20th day of June, 1893, was a large stockholder in the coal company, owning nineteen hundred and fifty-three (1953) shares, of the aggregate par value of ninety-seven thousand, six hundred and fifty dollars ($ 97,650); that he died testate, and devised his property, including the shares of stock aforesaid, to the defendants, who are his children and grandchildren; that the shares of stock constitute a part of his unsettled estate, which has not been distributed or administered. The petition further alleges that in his lifetime John C. Douglass commenced a suit in the district court of Leavenworth county on the identical cause of action herein set forth and against the same defendants or their privies and predecessors in interest, which suit was pending at the time of his death, and was afterward revived in the name of the plaintiff as executrix of his estate; that the suit so revived was thereafter, upon a change of venue, removed to the court of common pleas of Wyandotte county, where it remained pending until February 5, 1910, at which time, upon leave of court, it was dismissed without prejudice. The present action was commenced January 28, 1910. A copy of the entry of judgment in favor of John C. Douglass against the coal company was attached to and made part of the petition. The prayer is for judgment against the administratrix as such and against the heirs and devisees for the amount of the judgment against the coal company, and that the same be charged as a lien upon the property of the Ryan estate.

The defendants filed demurrers to the petition on the ground that it fails to state a cause of action. The court sustained the demurrers; Mrs. Douglass appeals and assigns the ruling as error.

A number of reasons are advanced which, it is contended, furnish sufficient grounds for sustaining the demurrers. The main question to be decided is whether the amendment to the stockholders' liability law or its subsequent repeal defeats the plaintiff's right of recovery. To enforce the constitution as it stood previous to the constitutional amendment of 1906, the legislature enacted two provisions. One authorized a judgment creditor of a corporation to issue execution, or he might proceed by action against any stockholder; the other authorized a creditor to sue a stockholder if the corporation had been dissolved leaving debts unpaid. Under these statutes the remedy of the creditor was by a single action against a single stockholder. At the special session of 1898 the legislature, by a law which took effect January 11, 1899 (Laws 1898, ch. 10, § 14, Gen. Stat. 1901, § 1302), changed the remedy to one of a suit by a receiver against the stockholders generally in favor of the creditors generally. In 1903 all provisions for the enforcement of stockholders' liability were repealed, and at the general election of 1906 section 2 of article 12 of the constitution was amended, abrogating the double liability of stockholders, and leaving each stockholder liable only to the amount of stock owned by him. The question is whether either the statutory amendment providing a different remedy, or the subsequent repeal of all provisions for enforcing a stockholders' liability, or the subsequent amendment to the constitution, bars the plaintiff's right to maintain this action under the statute as it existed prior to January 11, 1899. A judgment founded on a tort is not a contract, and for that reason is not protected by the provisions of the federal constitution against the impairment of contract obligations by state legislation. (Louisiana v. Mayor of New Orleans, 109 U.S. 285, 27 L.Ed. 936, 3 S.Ct. 211; Chase v. Curtis, 113 U.S. 452, 28 L.Ed. 1038, 5 S.Ct. 554; Freeland v. Williams, 131 U.S. 405, 33 L.Ed. 193, 9 S.Ct. 763; Henley v. Stevenson, 67 Kan. 4, 72 P. 518.)

In the case last cited the record failed to disclose the nature of the litigation which resulted in the judgment against the corporation, and whether or not any contractual liability existed between the judgment creditor and the corporation prior to the time the act of 1898 took effect, and it was therefore held that it did not appear that the creditor was entitled to pursue the remedy under the earlier statute.

The defendants claim that in the original action John C. Douglass sued the coal company for a statutory trespass; that his action was in tort, and the judgment now sought to be enforced must be classed as one for a tort pure and simple. The character of the action upon which the judgment is founded must be determined solely from what is stated concerning it in the petition in this case. Obviously it was brought under the provisions of the statute (Gen. Stat. 1868 ch. 113, § 1, Gen. Stat. 1909, § 9692) authorizing treble damages in certain kinds of trespass, since treble damages were claimed. However, the plaintiff either failed in his proof as to the allegations entitling him to more than compensation or (what seems more probable)...