Guilbert v. Kessinger

• Decision Date: 16 June 1913
• Citation: 173 Mo. App. 680,160 S.W. 17
• Parties: GUILBERT v. KESSINGER.
• Court: Missouri Court of Appeals

160 S.W. 17

173 Mo. App. 680

GUILBERT v. KESSINGER.

Kansas City Court of Appeals. Missouri.

June 16, 1913.

1. APPEAL AND ERROR (§ 586)—ABSTRACT— SHOWING FILING OF BILL OF EXCEPTIONS.

Under the express provisions of Kansas City Court of Appeals Rule 26 (159 S. W. vii). an abstract, which states that a bill of exceptions was filed and that the other steps required to perfect an appeal were duly taken, is sufficient, though it does not show the record entries showing the taking of such steps.

2. APPEAL AND ERROR (§ 934)—REVIEW—QUESTION OF FACT.

In an action by the receiver of a corporation against a stockholder to recover the balance on his subscription, a judgment for plaintiff necessarily including a finding that defendant was a stockholder, slight evidence on this point was sufficient, and if there was any evidence to show that he was a stockholder it would be given its fullest probative force on appeal.

3. CORPORATIONS (§ 171) — STOCKHOLDERS — EVIDENCE OF MEMBERSHIP.

In an action by the receiver of a corporation to collect the balance of a stock subscription from one who denied that he was a stockholder, the books and records of the corporation not containing his signature or other similar act to which he was a party, if unsupported by other evidence, were not admissible to prove his membership in the corporation.

4. EVIDENCE (§ 178)—SECONDARY EVIDENCE —PRELIMINARY PROOF.

Where it was shown that the stock book and other records of a corporation showing its original organization, and which would contain the signatures of those taking stock, were lost and could not be found, and that no certificates of stock were ever issued, and that no receipts for certificates were therefore ever taken, secondary evidence of an alleged stockholder's connection with the corporation could be introduced.

5. CORPORATIONS (§ 171) — STOCKHOLDERS — ACTIONS—EVIDENCE.

That one was a stockholder in a corporation need not be shown by written evidence, but may be shown by proof of his conduct.

6. CORPORATIONS (§ 170) — STOCKHOLDERS — EVIDENCE OF MEMBERSHIP.

Persons participating in the character of stockholders in the meetings of the corporation and in the conduct of its business by paying calls assessed against them, and in other ways, are estopped to deny that they are stockholders as against the corporation or its receiver.

7. CORPORATIONS (§ 171) — STOCKHOLDERS — EVIDENCE OF MEMBERSHIP.

Where it was shown that W. L. K. attended meetings of the directors of a corporation and acted as director, the articles of association containing the name of W. S. K., although not conclusive that W. L. K. was a stockholder, was evidence of that fact; there being no evidence that there was any such person as W. S. K.

8. CORPORATIONS (§ 171) — STOCKHOLDERS — EVIDENCE OF MEMBERSHIP.

While a person cannot be shown to be a stockholder in a corporation by the declarations

of the corporation's officers, this may be shown by such officers' sworn testimony.

9. CORPORATIONS (§ 171) — STOCKHOLDERS — EVIDENCE OF MEMBERSHIP.

Where it was shown that an alleged stockholder in a corporation attended directors' meetings, acted as a director, and paid calls and assessments on his stock, the corporate minutes and records were admissible to explain the force and meaning of the payment of such calls by comparing such payments with those of other stockholders, and also on the principle that having attended the meetings and participated therein he had knowledge of what was done.

10. CORPORATIONS (§ 556)—APPOINTMENT OF RECEIVER—PARTIES.

Unless otherwise provided by statute, only judgment or lien creditors can maintain an action to have a receiver of a corporation appointed.

11. CORPORATIONS (§ 553)—APPOINTMENT OF RECEIVER—PARTIES.

Under Gen. St. Kan. 1901, § 4701, authorizing the appointment of a receiver in an action by a creditor to subject property or funds to his claims, or in cases provided by statute, when a corporation has been dissolved, is insolvent, or in imminent danger of insolvency, section 1310, providing that a corporation shall be deemed dissolved for the purpose of enabling creditors to prosecute suits against the stockholders to enforce their individual liability, if the corporation suspends business for more than one year, section 1315, making stockholders liable to creditors for unpaid subscriptions, and in addition for an amount equal to the par value of their stock, such liability to be considered an asset of the corporation in the event of insolvency, and collected by a receiver for the benefit of all creditors, and section 1302, providing that if an execution shall have been issued against the property of a corporation and no property can be found the corporation shall be deemed to be insolvent and a receiver may be appointed who shall sue for unpaid subscriptions and for the stockholders' additional liability, where it was shown that a corporation was insolvent and had suspended business for more than one year, a receiver could be appointed although no execution against the corporation had been returned unsatisfied.

12. CORPORATIONS (§ 559) — RECEIVER — APPOINTMENT —COLLATERAL ATTACK.

The appointment of a receiver for a corporation was not void and could not be attacked collaterally, even if erroneous, because no judgment had been rendered against the corporation and execution returned unsatisfied.

13. PARTIES (§ 76)—WAIVER OF OBJECTIONS —WANT OF CAPACITY.

Under the express provisions of Rev. St. 1909, § 1800, in an action by the receiver of a corporation, an objection to his capacity to use because no judgment had been rendered against the corporation and execution returned unsatisfied was waived by a failure to demur; the absence of such judgment and execution appearing on the face of the petition.

14. CORPORATIONS (§ 261) — ACTIONS ON STOCK SUBSCRIPTIONS — CONDITIONS PRECEDENT.

Under the statutes of Kansas, it was not necessary, before a receiver of a corporation might collect unpaid stock subscriptions and the additional liability equal to the par value of the stock, that a suit should be instituted to determine the amount of the corporate indebtedness and the amount for which each stockholder shall be liable, as under Gen. St. 1901, § 1302, providing that should the collections made by the receiver exceed the amount necessary to pay all claims, together with the costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, the equalizing of the liabilities between the stockholders is to be accomplished in the receivership case, and such a suit was particularly unnecessary where the court in the receivership case found the names and number of creditors, the debts due them, the names of the stockholders, and the par value of their stock, and where all of the solvent stockholders, except one who alone was a resident of Missouri, voluntarily paid their subscriptions.

15. CORPORATIONS (§ 559)—APPOINTMENT OF RECEIVER—CONCLUSIVENESS—PARTIES CONCLUDED.

The findings of the court contained in a decree in a suit for the appointment of a receiver for an insolvent corporation were prima facie evidence against foreign stockholders who were not parties to such suit.

16. LIMITATION OF ACTIONS (§ 66)—ACCRUAL OF RIGHT OF ACTION — STOCK SUBSCRIPTIONS.

Limitations do not run as against subscriptions to stock payable as called for until a call, or its equivalent, has been made.

17. LIMITATION OF ACTIONS (§ 2)—LAW GOVERNING.

Under Rev. St. 1909, § 1895, providing that when a cause of action has been barred by the laws of the state in which it originated such bar shall be a complete defense to any action thereon in this state, a Kansas limitation statute would not bar a suit in this state on a cause of action originating in Kansas, where it was not barred in Kansas under Gen. St. 1901, § 4449, providing that, if when a cause of action accrues against a person he be out of the state, the period limited for the commencement of the action shall not begin to run until he comes into the state.

18. LIMITATION OF ACTIONS (§ 2)—ACCRUAL OF RIGHT OF ACTION — STOCK SUBSCRIPTIONS.

As under the Kansas statutes a creditor could not have a proceeding instituted against the stockholders of a corporation until a receiver was appointed and ordered by the court to proceed against them, limitations did not run until the appointment of a receiver.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by E. J. Guilbert, receiver of the Buckeye Land & Town Company, against W. L. Kessinger. Judgment for plaintiff, and defendant appeals. Affirmed.

C. H. Nearing, of Kansas City, for appellant. Jos. S. Rust, of Kansas City, and Lee Monroe, of Topeka, Kan., for respondent.

TRIMBLE, J.

The Buckeye Land & Town Company was a Kansas corporation organized in 1887, with a capital stock of $50,000 divided into 1,000 shares of $50 each. It was, and is now, claimed by the plaintiff that the defendant (who is appellant here) was one of its directors and stockholders, but paid into the corporate treasury on his stock less than 20 per cent. of its face or par value.

On January 6, 1899, the corporation executed a note to Houston Hay for $1,046 due 90 days after date. On January 11, 1902, the corporation became, and thereafter remained, insolvent. On that day the administrator of the estate of Houston Hay brought suit in the district court of Logan county, Kan., to recover judgment on said note, and for the purpose of having a receiver appointed for said corporation. The petition in that suit alleged the execution and ownership of the note in sufficient terms to entitle plaintiff to a judgment thereon, and then alleged that said corporation was insolvent, had wholly suspended business for more than one year prior to the commencement of the action; that it owed debts amounting to more than $7,500; that suits were pending against it in other states; that it owned...