Michelin Tire Co. v. Webb

• Decision Date: 02 May 1910
• Citation: 127 S.W. 948,143 Mo. App. 679
• Parties: MICHELIN TIRE CO. v. WEBB.
• Court: Missouri Court of Appeals

127 S.W. 948

143 Mo. App. 679

MICHELIN TIRE CO. v. WEBB.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. ABATEMENT AND REVIVAL (§ 4)—ANOTHER ACTION PENDING.

Where two suits are brought at different times between the same parties and for the same thing, the second suit will be abated.

2. ABATEMENT AND REVIVAL (§ 17)—PENDENCY OF ACTION—MOTION TO DISMISS.

Under a statute providing that defendant may demur to the petition when it appears upon the face thereof that there is another action pending between the same parties for the same cause, and that where it does not so appear the objection may be raised by answer, and, if objection is not so made, it shall be deemed waived, where a petition does not show on its face that there is another action pending between the same parties for the same cause, the petition cannot be attacked by a motion to dismiss.

3. ABATEMENT AND REVIVAL (§ 5)—ACTIONS AGAINST STOCKHOLDERS—NATURE OF PENDING ACTION.

Under Rev. St. 1899, § 987 (Ann. St. 1906, p. 873), providing that, if a corporation be dissolved leaving debts unpaid, suits may be brought against stockholders without joining the corporation, the remedies against the corporation and stockholders are concurrent, and the pendency of the suit against the corporation is no objection to the prosecution of a suit against a stockholder, as a plea of former suit pending is not available as a defense, unless the former suit is effectual, and plaintiff can obtain his remedy therein as completely as in the second suit.

Appeal from Circuit Court, Jasper County; Haywood Scott, Judge.

Action by the Michelin Tire Company against A. C. Webb. A motion to strike the cause from the docket was sustained, and plaintiff appeals. Judgment reversed, and cause remanded, with instructions to reinstate.

Fred W. Kelsey and Leroy S. Dewey, for appellant. Pearson & Butts, for respondent.

GRAY, J.

This suit was instituted in the circuit court of Jasper county on the 8th day of September, 1908, to recover a judgment against the defendant for goods, wares, and merchandise sold to A. C. Webb Automobile Company, a corporation. The petition alleges the defendant was a stockholder in said corporation, and that the corporation had dissolved and ceased to do business, and prayed for judgment against the defendant under the provisions of section 987, Rev. St. 1899 (Ann. St. 1906, p. 873). The defendant was served with process, and filed his answer within the time prescribed by the statute. Afterwards, and during the same term of court, the defendant filed a motion to strike the cause from the docket, on the ground that the plaintiff had instituted a suit for the same debt against the said A. C. Webb Automobile Company, and that said action was then pending in Division No. 2 of said court. The motion was sustained, after allowing the defendant to introduce the files in the suit against the corporation, and the plaintiff has appealed to this court.

The only question to be considered is the action of the court on the motion. The statute under which the suit was brought provides that, if a corporation be dissolved leaving debts unpaid, suit may be brought against persons who are stockholders without joining the corporation in such suit. The reading of the statute implies that it would be proper to join the corporation in the suit against the stockholder, as it provides the suit may be brought without doing so. The general rule is, where two suits are brought at different times between the same parties, and for the same thing, the suit first brought occupies the ground, and that subsequently brought will be abated. Walter Commission Co. v. Gilleland, 98 Mo. App. 584, 73 S. W. 295.

Objection is made that a motion is not a proper way to attack a petition for the reasons assigned in this case, and that the same should be done by answer. Our Code of Civil Procedure (Ann. St. 1906, § 598) provides that the defendant may demur to the petition when it shall appear upon the face thereof that "there is another action...