Fowler v. Lamson

• Decision Date: 19 June 1893
• Citation: 146 Ill. 472,34 N.E. 932
• Parties: FOWLER et al. v. LAMSON et al.
• Court: Illinois Supreme Court

146 Ill. 472

34 N.E. 932

FOWLER et al.

v.LAMSON et al.¹

Supreme Court of Illinois.

June 19, 1893.²

Appeal from appellate court, first district.

Bill by George A. Fowler and others against S. Warren Lamson and others. Complainants obtained a decree, which was reversed by the appellate court. Complainants appeal. Affirmed.

E. F. Thompson, for appellants.

D. M. Kirton, for appellees.

WILKIN, J.

This is an appeal from the appellate court of the first district, reversing a decree of the superior court of Cook county in favor of appellants against appellees. The bill upon which the decree was rendered was filed by said George W. Fowler, and alleged that at the October term, 1890, of said superior court he recovered a judgment against the Cherokee Brilliant Coal & Mining Company for $3,321.40 and costs of suit; that a writ of fieri facias issued thereon, directed to the sheriff of Cook county, who ‘demanded payment thereof, or property upon which to levy the same, from S. Warren Lamson, president of said corporation, which being refused, said writ was returned unsatisfied, and said judgment remains wholly unpaid.’ That said company was incorporation in September, 1882, under the laws of the state of Kansas, and for a number of years thereafter carried on business. That at the date of its incorporation it was, and ever since has been, a part of the constitution of Kansas that ‘dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder and such other means as shall be provided by law,’ and that at said time and since it has been, and now is, a part of the laws of said state, that ‘if any execution shall have been issued against the property or effects of the corporation except a railway or a religious or charitable corporation, and there cannot not be found any property whereon to levy such execution then execution may be issued against any of the stockholders to an extent equal in amount to the amount of the stock by him or her owned, together with any amount unpaid thereon, but no execution shall issue against stockholders except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted made upon motion of the court, after reasonable notice in writing to the person or persons sought to be charged. And upon such motion such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.’ Comp. Laws Kan. c. 23, § 32. That said Cherokee Brilliant Coal & Mining Company was not a ‘railway, religious, or charitable corporation.’ That the defendants became the owners of 521 shares of the capital stock of said company, of the par value of $100 each, and are chargeable with liability to the creditors of said corporation equal in amount to the amount of stock so held by them. That said company became insolvent, and made an assignment of all of its property, on or about June 17, 1886. That by the laws of said state of Kansas it is further provided that ‘if any corporation, created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution without joining the corporation in such suit, and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution for the recovery of the portion of such debt for which they were liable, and the execution upon the judgment shall direct the collection to be made from the property of each stockholder, respectively, and if any number of stockholders (defendants in the case) shall not have property enough to satisfy his or their portion of the execution, then the amount of deficiency shall be divided equally among all the remaining stockholders and collection made accordingly, deducting from the amount a sum in proportion to the amount of stock owned by the plaintiff at the time the company dissolved.’ Id. § 44. That at the time of issuing said fieri facias said corporation had for more than a year suspended business, and was thereby dissolved. It was stipulated between the parties that the defendants were the owners of the shares of stock alleged in the bill, but the same had been fully paid for. The appellant Earle filed an intervening petition, setting up a judgment in his favor against said corporation for $1,162.50, rendered at the December term, 1890, the return of execution unsatisfied, etc., and joining in the general allegations of the bill. The prayer of the bill is that the defendants be decreed to pay said judgments. For the purposes of this opinion, the answer of defendants, except the stipulation above mentioned, may be treated as a general denial of the allegations of the bill, and expressly denying the jurisdiction of the court. The cause having been referred to a master, he reported that all the material allegations of the bill were sustained by the proofs, and that the prayer thereof should be granted. Exceptions to this report were overruled, and a decree entered accordingly. That decree having been reversed by the appellate court, (44 Ill. App. 186,) this appeal is prosecuted.

The first question presented for our decision is whether, under the laws of the state of Kansas where said corporation was organized and is domiciled, appellees are individually liable to its creditors to an amount equal to the stock thereof owned by them. The decision of this question depends upon whether the constitutional provision of that...