Herf & Frerichs Chemical Co. v. Brewster

• Citation: 117 S.W. 880
• Parties: HERF & FRERICHS CHEMICAL CO. v. BREWSTER et al.
• Decision Date: 27 February 1909
• Court: Court of Appeals of Texas

117 S.W. 880

HERF & FRERICHS CHEMICAL CO. v. BREWSTER et al.

Court of Civil Appeals of Texas.

February 27, 1909.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Suit by the Herf & Frerichs Chemical Company against E. J. Brewster and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Griggs & Barkley, for appellant. Hunt, Myer & Townes, for appellees Brewster and others. Baker, Botts, Parker & Garwood, for appellee Wilson.

McMEANS, J.

Appellant, plaintiff below, alleged in its petition, in substance, that having a claim against the Home Ice Company, a domestic corporation, it brought suit against said corporation thereon, and recovered judgment for $1,755.64, besides costs of suit, upon which execution was issued and returned nulla bona; that at the time of the rendition of said judgment and the issuance and return of said execution said corporation had no property or assets out of which said judgment could be satisfied in whole or in part, and that it was insolvent and bankrupt, and that said corporation, on the petition of appellees, who were stockholders therein, had been adjudged a bankrupt by the United States District Court, and that in said bankruptcy proceeding, which was still pending in said court, all of the property and effects of the corporation had been vested in the trustee in bankruptcy; and that the same had been by the trustee distributed to the secured claimant, E. J. Brewster, one of the appellees, and that there was nothing left of the property of said bankrupt to pay plaintiff's judgment or to pay the costs of further administration of the bankrupt estate in the United States District Court, and that no further administration of the bankrupt estate can be had or is attempted to be had in said court. Plaintiff further alleged that the appellees, defendants below, were the principal subscribers to the capital stock of said bankrupt corporation, and that they had failed to pay said corporation par value of the stock subscribed for by them, but that same was still due and owing; that neither of said stockholders nor the bankruptcy court, nor any of the creditors of the bankrupt corporation, have made, nor are they or either of them making, any effort, nor do they, or either of them, seek to marshal the assets of the bankrupt corporation represented by the unpaid balance due upon stock subscriptions, the par value of which is $100 per share, nor to collect the amount due on same; and that plaintiff by this suit seeks to collect a sufficient amount due on said unpaid stock subscriptions to satisfy said judgment, and which, it alleged, is its only remedy, and without which its debt will be lost. It further alleged that secret settlement of all other claims against the bankrupt corporation had been made by appellees, leaving plaintiff's judgment the only unpaid claim against said corporation, and that it is without remedy to collect its claim except under article 671, c. 4, and article 684, c. 5, of the Revised Statutes of Texas of 1895, and other general statutes, by virtue of which the suit is brought for the...