Keaton v. Shiflett
| Decision Date | 10 November 1936 |
| Docket Number | 25816. |
| Citation | 63 P.2d 102,178 Okla. 587,1936 OK 709 |
| Parties | KEATON et al. v. SHIFLETT. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 8, 1936.
Second Petition for Rehearing Denied Jan. 5, 1937.
Syllabus by the Court.
1. Where plaintiff and three intervening petitioners recovered individual judgments against defendant, a corporation, in a single action for labor furnished in the drilling of wells upon an oil and gas mining leasehold, and a single execution was thereafter issued within five years from the rendition of said judgment, which execution gave the name and style of the case, names of the plaintiff, interveners, and the defendant and mentioned the sum total of the judgment rendered against the defendant:
Held, that the execution, though illegal, was not void and was not barred by the statute of limitations in an action filed by said plaintiff and interveners against the stockholders of said corporation pursuant to section 5463 C.O.S.1921, section 9913, O.S. 1931.
2. Under the provisions of section 112, O.S.1931, section 202, C.O.S.1921, a suit against a domestic corporation, upon a cause of action for debt for labor, may be brought in the county where the cause of action arose, and, under the provisions of section 167, O.S.1931, section 234, C.O.S.1921, a summons for the defendant may be issued to any other county of the state, in which service can be made upon it under the provisions of section 176, O.S.1931, section 243, C.O.S. 1921.
3. Where the employees of an oil company procure judgments against said company, upon claims for debts due for labor, without the stockholders being parties to the action, and thereafter by subsequent action seek to enforce liability against said stockholders under section 9913, Id., such stockholders are not precluded from questioning the correctness of such claims, by proper pleadings and proof in respect to whether the claims have been paid, or are a valid indebtedness against said corporation.
4. Where an action is brought against the stockholders of a corporation to hold them liable for the debts represented by unsatisfied judgments against said corporation, as provided by section 9913, Id., the judgment is prima facie evidence against the stockholders to show the corporate liability.
5. Where a person procures a judgment on a debt for labor against a corporation, and an execution thereon is issued and returned not satisfied, the stockholders of such corporation become jointly and severally liable for such debt, and upon the death of such judgment creditor, such liability passes as an asset to his estate, and his representative may maintain an action thereon, if the same is brought within four months of the date of the return of such execution, although such judgment against such corporation has not been revived under the provisions of sections 584 and 589, O.S.1931, section 5294, C.O.S.1921 (O.S.1931, § 9718).
6. Record examined; judgment affirmed.
Appeal from District Court, Okmulgee County; Gaylord R. Wilcox, Judge.
Suit by W. S. Shiflett, as administrator of the estate of W. S. Thetford, deceased, against J. B. Keaton and others. To review a judgment for plaintiff, defendants bring error.
Affirmed.
M. A. Dennis, of Okmulgee, for plaintiffs in error.
H. S. Samples and Steele & Boatman, all of Okmulgee, for defendant in error.
This action concerns the individual liability of defendants as stockholders of a corporation for debts due to mechanics, workmen, and labor employed by such corporation after an execution against the corporation was returned not satisfied, pursuant to section 5463, C.O.S.1921, section 9913, O.S.1931.
On January 29, 1931, A. P. Jetton et al., defendants in error, copartners, and comprising the members of an independent casing crew, filed suit in the district court of Okfuskee county to recover judgment against the Betty Ann Oil Company, and also against J. B. Keaton and C. D. Gold, who were officials and managers of said oil corporation, for money due and owing for labor and work performed on an oil and gas leasehold estate situated in said county and for foreclosure of laborers and mechanics' liens against same. In that action W. S. Thetford and G. W. McClain and Elmer Lallathin filed separate intervening petitions seeking for separate judgments against the same defendants for labor performed on said leasehold and for the foreclosure of their respective liens. On February 15, 1932, the district court rendered separate judgments in favor of plaintiffs and said interveners. No appeal was taken by any of the defendants from that judgment, and thereafter an execution was issued in said cause, being No. 7597, directed to the sheriff of said county, and said execution was returned unsatisfied by reason of no property being found in said county. Subsequently an execution was issued in said cause directed to the sheriff of Oklahoma county, and it likewise was returned by said sheriff, unsatisfied for the same reason.
Within four months after said executions had been returned unsatisfied, four separate suits were filed in the district court of Okmulgee county against said defendants, plaintiffs in error, upon their stockholders' liability pursuant to section 9913, O.S. 1931, supra.
On February 6, 1934, separate money judgments were rendered against said defendants and each of them. The judgments in the respective cases being as follows:
In each of the cases the defendants demurred to plaintiffs' evidence. The court overruled these demurrers, and defendants refused to offer any evidence, and judgments were rendered accordingly against them in favor of the plaintiffs.
The primary question involved centers upon the validity of the execution issued out of the district court of Okfuskee county in the action wherein judgment was obtained against the Betty Ann Oil Corporation.
It is the contention of the plaintiffs in error that this execution was void for the reason that one execution could not be issued upon four separate and distinct judgments in favor of four different persons or legal entities. In support of this proposition plaintiffs in error cite the rule announced in 23 C.J. 315, to the effect that each judgment must carry its own execution and that a single execution cannot be issued on two or more separate judgments, but that an execution should be issued on each judgment.
The decisions bearing on this question are few and not in harmony. Some of the cases hold that one execution issued on judgments obtained in separate actions are void. Merchie v. Gaines, 5 B.Mon. (Ky.) 126; Stuart & Palmer v. Heiskell's Trustee, 86 Va. 191, 9 S.E. 984, 985; Cohen v. Menard, 31 Ill.App. 503; Doe ex dem. Wilkins v. Rue, 4 Blackf. (Ind.) 263, 29 Am.Dec. 368; Stewart v. Morrison, 81 Tex. 396, 17 S.W. 15, 17, 26 Am.St.Rep. 821; Bain & Wyatt v. Chrisman, 27 Mo. 293; Bigham v. Dover, 86 Ark. 323, 110 S.W. 217.
In the case of Dugan v. Harman, 80 Kan. 302, 102 P. 465 467, 133 Am.St.Rep. 209, the Supreme Court of Kansas took the contrary view, and held that an execution issued out of the office of the clerk of the district court at the instance of plaintiff upon two judgments rendered in favor of plaintiff in separate actions in a justice of peace court against the same defendants, an abstract of which judgments had been filed in the district court, was not void, and that such execution, issued within five years after the date of the judgments, prevented the judgments from becoming dormant for five years from the date of the execution. The concurring opinion of Mr. Justice Mason states the correct and applicable rule: ...
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