Marks v. Hardy

• Decision Date: 30 April 1885
• Citation: 86 Mo. 232
• Parties: MARKS v. HARDY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 232

MARKS

v.HARDY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. I. D'Arcy for appellant.

A return is essential to the creation of any right based on an execution against a stockholder. Courts will not dispense with any statutory formality, even when they deem it unimportant. Bright v. Boyd, 1 Story C. C. 486; Townsend v. Tallant, 33 Cal. 45; Bree v. Bree, 51 Ill. 367; Abernathy v. Dennis, 49 Mo. 468; Merrill v. Walker, 24 Me. 240; Shroyer v. Nickoll, 55 Mo. 500; Turner v. Ry. Co., 78 Mo. 580; Sedgwick on Construction (Ed. Pomeroy) 277. And what is obviously implied is as much a part of a statute as what is expressed. Neenan v. Smith, 50 Mo. 526; Wilkinson v. Leland, 2 Pet. 627; Cooksey v. Railroad, 74 Mo. 480; United States v. Kirby, 7 Wall. 482; Suckley v. Furse, 15 Johns. (N. Y.) 338; Oates v. National Bank, 100 U. S. 244; Lieber's Hermeneutics (Ed. Hammond) 81. And the necessity of a return arises from general principles as well as from the statute. The statutory motion cannot be resorted to if a single dollar can be levied on. Hannah v. Bank, 67 Mo. 685.

Rassieur & Tiffany for respondent.

(1) The statute does not require any particular kind of evidence “that there cannot be found any property or effects whereon to levy.” R. S., sec. 736. A judgment and execution unsatisfied are evidence of insolvency, and of inability to collect. They are, however, evidence only, and the fact may be established as well by other evidence. Terry v. Tubman, 92 U. S. 161; Hodges v. Silver, etc., 9 Oregon, 20; 2 Am. Lead. Cases, 134, 136; Skrainka v. Allen, 76 Mo. 384. (2) When an officer has made one full examination for goods without success, he can return the execution nulla bona before return day. Thornton v. Lane, 11 Ga. 523; Wilcox v. Ratcliff, 5 Blackbird, 561; Crocker on Sheriffs, secs. 424, 422. (3) The proceeding is supplementary, and has not all the attributes of an independent suit. Allen v. Benton, 79 Mo. 166. (4) Those who were stockholders at the time execution issued against the company, became liable, unless the execution against the company were satisfied. McClaren v. Franciscus, 43 Mo. 465. Though the court, and not the sheriff is to determine whether or not the execution shall go against the stockholder, “the rule of liability remains the same.” Skrainka v. Allen, 76 Mo. 384. As soon as the court, in place of the sheriff, ascertains that there is no property on which to levy, it may order execution. (5) It was the object of the statute to make the court the judge of whether there was any property of the corporation on which to levy, instead of the sheriff, and to give the stockholder an opportunity to show corporate property, if there were any, and the court rightly exercised its discretion. Skrainka v. Allen, 76 Mo. 348. (6) The statute says, “and there cannot be found any property or effects whereon to levy the same.” The evident meaning is any substantial amount whereon to levy a substantial satisfaction of such execution. Ilfracombe Ry. Co. v. Poltimore, 3 C. P. L. R. 286, 293.

BLACK, J.

1. The plaintiff having a judgment and unsatisfied execution issued thereon against the Butchers' and Drovers' Bank, made his motion under section 736, for execution against Hardy on account of an unpaid balance of sixty shares of stock held by the latter. Execution was awarded, and this order was affirmed by the court of appeals. Pending the appeal in this court, Hardy died. The administrator of Hardy's estate resists the revivor, and this presents the first question for decision.

Express statute law is that execution shall not issue upon a judgment or decree rendered against the intestate in his lifetime, which judgment or decree constitutes a demand against the estate within the meaning of the administration law. R. S., sec. 2360. No formal judgment for money is entered under section 736, but the order is that execution issue against the stockholder for the unpaid balance on his stock. The argument is that the order for execution does not constitute a judgment, decree, or demand, which may be presented and classed as a demand against the estate, and as no execution can be issued against a dead man's estate, the proceeding must abate. It may be contended with just as much force that the order for execution is not such a judgment or decree as may be classed as a demand, and as the statute, with respect to executions, prohibits an execution from issuing only on such judgments and decrees as constitute a demand against the estate within the meaning of the administration law, that, therefore, executions may still go out in this class of cases against the property of the estate.

The substance and policy of the law must not be overlooked. It is true no formal judgment or decree is entered on the motion, but the inquiry upon the hearing of the motion involves a determination of whether the party is a stockholder, and, if so, to what extent, and how much he owes thereon. It may also require an adjudication as to off-sets which he may have. The result is to fix upon him a liability for the unpaid balance found to be due on the stock. This balance due to the corporation is, by the order and law, appropriated to the payment of the judgment debt, and the payment discharges the stockholder and his estate from further liability. Of course the proceeding on the motion is not an original suit. It is, however, a supplementary proceeding, and for many purposes must be regarded and treated as an action pending. It would be against the policy of the law to hold that this proceeding must abate by the death of the defendant. The order for execution is designed to take the place of a more cumbersome suit, which would result in a decree. While execution may not go out against the estate, we think the final adjudication on the motion may fairly be regarded and treated as a demand against the estate, and may be classed as such, and we so rule; and, further, the proceeding does not abate when commenced against the stockholder in his lifetime, by reason of his death thereafter.

2. There were many questions raised on the hearing of the motion in the circuit court, two of which only appear to be urged here, and they are stated as follows: (1) “The plaintiff below could not proceed, by motion, against the defendant stockholders before a return that there could not be found any property or effects whereon to levy the same.” (2) “The evidence, which consisted solely of the sheriff's return, showed that there was property, and that it had been levied on by him under the execution.”

The facts, so far as they bear upon these questions, are that the execution against the bank was issued on the sixth of January, 1881, returnable to the following February term of the circuit court. The sheriff's endorsements on the writ show that on the seventh of January he levied upon one safe and contents, office furniture, etc., and “a lot of books and papers.” Some of the property was sold on the twenty-sixth of that month for $121.26, and the proceeds applied to costs. Other articles of the property levied upon, including what would appear to be nearly, if not all, of the contents of the safe, were delivered to claimants, and the balance...