M. A. Gedney Company v. Sanford
| Decision Date | 27 September 1920 |
| Docket Number | 20974 |
| Citation | 179 N.W. 385,105 Neb. 112 |
| Parties | M. A. GEDNEY COMPANY ET AL., APPELLANTS, v. CHARLES W. SANFORD ET AL., APPLLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LEONARD A FLANSBURG, JUDGE. Affirmed.
AFFIRMED.
Fawcett Mockett & Walford and Burkett, Wilson, Brown & Wilson, for appellants.
John J Ledwith, T. S. Allen, Anderson & Baylor and Reese & Stout, contra.
The M. A. Gedney Company is a Minnesota corporation; the Bank of Dixon county is a Nebraska corporation located at Ponca. The Gedney company and the bank joined as plaintiffs in a suit against Charles W. Sanford and 15 other defendants, alleging that the Hargreaves Mercantile Company was organized as a Nebraska corporation, and that defendants were holders and owners of certain specified shares of stock therein; that in April, 1915, being insolvent and indebted to many persons, it assigned its assets, for distribution among its creditors, to the First Trust Company of Lincoln. The Gedney company sought to recover from defendants $ 319.98 and the bank sought to recover $ 1,707.58. Ralph P. Wilson intervened, as assignee for collection of the accounts of a number of creditors, seeking to recover a sum aggregating $ 3,730.59 on his cross-petition. Six additional creditors intervened and filed a joint answer and cross-petition seeking to recover an aggregate sum approximating $ 1,500. Plaintiffs and all intervening cross-petitioners seek substantially the same relief, and will, for brevity and convenience, be hereinafter referred to as plaintiffs. They allege in substance that "the assets of the said company have been exhausted and there is a large amount of indebtedness still owing to the creditors," and that when it ceased doing business in April, 1915, it was then and long prior thereto had been insolvent. They allege they are entitled to an accounting. When the taking of testimony was concluded the court dismissed the suit at plaintiffs' costs, and they appealed.
Plaintiffs allege generally that "the defendants herein named were all the stockholders in the said Hargreaves Mercantile Company, owing stock therein; * * * that a part of the defendants herein and who are stockholders as above set forth, are nonresidents of the state of Nebraska and service upon a part of the said defendants and stockholders cannot be obtained in the state of Nebraska, and that a part of the said defendants and stockholders * * * are insolvent and collection cannot be made from them by process of law, and that each of the defendants is liable for a part of the liability owed by the said Hargreaves Mercantile Company, the same to be in proportion to the amount his stock bears to that of the solvent stockholders * * * upon whom service may be had, and that the only way that the amount of the liability of each may be determined is by having an accounting in a court of equity."
All answering defendants plead the same defense. To the petition and cross-petitions they interpose a general denial, and specifically deny the existence of the alleged indebtedness.
With the exception of the sheriff's return, "not found in my county," there is no allegation in the petition nor in the cross-petitions, nor is there any proof to show that four or five of the defendants, or some of them, who were named in the petition as stockholders, but were not served with summons, namely, Gladys Hargreaves Southwick, J. B Waldo, Alex Berger, R. L. Hargreaves, George E. Haskell, and Grace B. Hargreaves, were not residents of Nebraska. It also appears from the stock books that A. E. Hargreaves, A. H. Drain, Frainor Rowan, and J. C. Ridnour, or some of them, were owners of a number of shares of stock when the indebtedness herein was incurred, but none of these...
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