Kennedy & Parsons Co. v. Schmidt
| Decision Date | 06 April 1950 |
| Docket Number | No. 32752,32752 |
| Parties | KENNEDY & PARSONS CO. v. SCHMIDT. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An action to recover the penalty provided by section 24-213, Comp.St.1929, must be brought in equity in behalf of all creditors and against all stockholders.
2. In pursuing the remedy provided by section 24-213, Comp.St.1929, creditors of an insolvent corporation cannot maintain an action against a part of the stockholders for the payment of corporate debts until it is shown that the stockholders who are not made parties defendant and who are not served with process are nonresidents of the state or for other good and sufficient reason cannot be reached by the process of the court.
3. The record of the trial court in all appellate proceedings imports absolute verity.
4. An affidavit must bear upon its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same.
Melvin Moss, Fairbury, W. J. Moss, Fairbury, Cloid J. Wilson, Omaha, for appellant.
Baldwin & Pike, Hebron, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action in equity brought under the provisions of section 24-213, Comp.St.1929, to enforce stockholders' liability to pay the debts of a dissolved corporation because of the failure of the corporation to publish annual notice of the amount of all existing debts of the corporation. The action is preserved under the general savings provision of section 24-1,104, C.S.Supp.1941, now section 21-1,156, R.S.1943. The trial court dismissed the action on the ground that all the stockholders of the dissolved corporation were not made defendants in the action. Plaintiff and cross-petitioner appeal. They are referred to herein as appellants. We affirm the judgment of the trial court.
No question is raised here as to the facts that the dissolved corporation was the Farmers Union Co-Operative Association of Deshler, Nebraska, a Nebraska corporation; that the notice of indebtedness was not given; that the plaintiff was a judgment creditor of the corporation; that its judgment is unsatisfied; that the corporation has no goods or assets out of which to satisfy the judgment; and likewise that the defendant and cross-petitioner, E. I. DuPont de Nemours & Company, a corporation, is also such a judgment creditor.
An action to recover the penalty provided by section 24-213, Comp.St.1929, must be brought in equity in behalf of all creditors and against all stockholders.
In pursuing the remedy provided by section 24-213, Comp.St.1929, creditors of an insolvent corporation cannot maintain an action against a part of the stockholders for the payment of corporate debts until it is shown that the stockholders who are not made parties defendant and who are not served with process are nonresidents of the state or for other good and sufficient reason cannot be reached by the process of the court. Dempster v. Ashton, 125 Neb. 535, 250 N.W. 917.
The questions presented here relate to whether or not good and sufficient reason has been shown for the failure of plaintiff to joint stockholders as parties defendant.
We recite only that part of the record that has to do with the questions here presented.
The transcript shows the trial judge's notes of January 16, 1947, to the effect that the files of the case were misplaced and that copies of the pleadings were ordered substituted. Accordingly it would seem that all pleadings shown in the transcript prior to that date are substituted copies. The transcript shows the appearance docket record of the clerk of the court. Where it appears reasonably certain, the dates shown on the appearance docket are those used here as the filing date for pleadings prior to January 16, 1947.
The appearance docket shows that this action began with the filing of a petition on November 17, 1941. The petition does not appear in the transcript, although an amended petition bearing a date in the verification form of the '___ day of October, 1941,' is shown as the first pleading in the transcript. We cannot reconcile this date with any date on the appearance docket. This amended petition shows seven individuals named as parties defendant. It contains allegations that they are officers, directors, and stockholders of the corporation.
On February 3, 1942, a demurrer was filed to whatever petition was then on file on the grounds that there was a defect of parties plaintiff and defendant, and that the petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained on all three grounds on July 21, 1942.
On June 30, 1942, plaintiff filed a demand on the defendants to produce the records and books of the corporation wherein the records of the names of stockholders and creditors were kept. This demand contained a notice that unless complied with within four days, a court order would be sought directing their production. The judge's notes show that on July 6, 1942, he sustained the motion and directed defendants to produce such records and books for inspection with ten days. On July 17, 1942, there was filed with the clerk of the court what is denominated in the bill of exceptions as the minute book of the corporation.
Plaintiff's attorney testified that prior to the filing of the minute book he did not know the name of the secretary of the corporation and that he determined it from the minute record; that he did not then undertake to secure a list of the stockholders from the secretary either by personal request or by court order or deposition; and that he advised defendants' attorneys that the minute book was not what he wanted and that he wanted the stock book.
No showing was made to the court of noncompliance with the order of July 6, 1942.
Plaintiff without following the matter further gleaned from the minute book the names of parties who appeared from it to be stockholders. On August 8, 1942, plaintiff filed its pleading denominated 'Second Amended Petition' naming in the caption the original seven defendants, 30 other parties as individuals, and the Du Pont corporation, as defendants. In this petition it alleged, so far as material here, that the named defendants were 'sole or part owners' of the stock of the corporation; that the plaintiff was unable to ascertain who were the stockholders; that it had on June 30, 1942, made demand upon the known stockholders for a disclosure of the records of who were the company's stockholders and creditors; that the demand was not complied with, other than the minute book of the corporation; and that to the best of its knowledge and belief the defendants are the owners and holders of the stock of the corporation. The Du Pont corporation filed an answer and cross-petition on May 10, 1943, wherein similar allegations are made. No showing of service of process appears.
On October 25, 1943, 30 defendants (except the Du Pont...
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Kennedy & Parsons Co. v. Schmidt, 32752.
...152 Neb. 63742 N.W.2d 191KENNEDY & PARSONS CO.v.SCHMIDT.No. 32752.Supreme Court of Nebraska.April 6, Action in equity by Kennedy & Parsons Company against Herman G. Schmidt and others to enforce stockholder's liability to pay the debts of a dissolved corporation because of failure of the co......