Missouri Valley Trust Company v. S. Joseph, Parkville & Kansas City Railway Company
| Citation | 144 S.W. 511,162 Mo.App. 158 |
| Parties | MISSOURI VALLEY TRUST COMPANY, Appellant, v. S. JOSEPH, PARKVILLE & KANSAS CITY RAILWAY COMPANY and CHARLES F. ENRIGHT, Respondents |
| Decision Date | 04 March 1912 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
John F Cell for appellant.
John E Dolman and Hogsett & Bogle for respondents.
This is a proceeding by motion under the statute to obtain execution against the defendant, Enright, who is alleged to be a delinquent stockholder of the St. Joseph, Parkville & Kansas City Railway Company. The motion is based on a judgment rendered by the circuit court of Jackson county on May 9 1907, in favor of Reed & Reed against the said railway company for $ 5,670.
The St. Joseph, Parkville & Kansas City Railway Company was organized for the purpose of building an electric railway between St. Joseph and Kansas City. Its capital stock was $ 5,000,000, and its articles of association were filed May 18, 1903. It proved to be a mere paper corporation, as it did not within two years after filing its articles of association begin the construction of a railroad; nor within one year thereafter expend ten per cent of its capital stock on such construction; and never acquired any right of way. It was shown that the company expended in one way or another in all about $ 1900 in the course of its existence. It kept no books of its own and its accounts were kept by the plaintiff company. John J. Tootle was the president of the plaintiff corporation and a subscriber to the capital stock of the railway company for ten shares of the par value of $ 100 per share, and defendant was a subscriber for 450 shares of its stock. The other stock with the exception of a Mr. Devitt were taken by others whose names it is not necessary to mention.
The judgment was for $ 5,670. It was entitled to a credit of $ 1,520 paid March 29, 1910, and $ 1,000 paid May 18, 1910. The plaintiff purchased and took an assignment of said judgment of Reed & Reed, and, as the railway corporation was insolvent and execution proof, this proceeding was instituted against defendant Enright, who had not paid all his subscription to the capital stock.
The first summons it seems was not executed until after the date when defendant was directed to appear and answer. The defendant resided in Jackson county and the second service of summons was served on the railway company in Buchanan county. The return of the officer serving the summons reads as follows: "Executed the within writ and petition by delivering a true copy of the writ and petition to Charles F. Enright, sec., and in charge of the office of the St. Joseph, Parkville & Kansas City Railway Company, the president and other chief officers not found in my county," etc.
One of the defenses set up by Enright is that he is not the owner of the stock, that he made the subscription for the plaintiff corporation, and, as such, was acting as its trustee and not in his individual capacity. There is evidence going to show that he was acting for the plaintiff in making the subscription for the 450 shares of the railway stock, and, as such, was its trustee. On the other hand this is denied and evidence offered to show that he was acting solely for himself. While Tootle was president of the plaintiff company, Enright was its vice-president and treasurer, and was the more active in the transaction of its business than Tootle, the president. But it is sufficiently shown that the latter also was cognizant of what transpired in its business operation and must have known in what capacity the defendant Enright was acting in the subscription he made to said stock. It was shown that Tootle and defendant thought it best to obtain the judgment of Reed & Reed and that Enright undertook and carried on the negotiations that resulted in such purchase at and for the sum of $ 4,100.
The plaintiff asked leave to amend the sheriff's return of service in the case of Reed & Reed against the railway company so as to show that the writ and petition was served by leaving a copy thereof at the business office of the defendant, etc. The proposed amendment would have supplied the defect of the original one made by the sheriff. Upon objection the leave to amend was denied. But no exceptions were taken to the ruling of the court. A second motion was made for leave to amend as will be shown hereafter.
The defendant's answer sets up several matters as a defense viz.: That defendant subscribed for the stock in question as trustee of the plaintiff; that on July 13, 1906, at the time the original suit was filed as well as on the 9th of May, 1907, the date when the judgment was taken, the corporate existence and powers of the railway company had entirely ceased, and that, therefore, the judgment obtained was void; that the purchase of the judgment from Reed & Reed by plaintiff was ultra vires; that the circuit court of Jackson county had no jurisdiction of said railway company, because the return of service was not sufficient to confer jurisdiction upon said court.
Tootle made the payment of $ 1,000 credited on the judgment and Martin A. Devitt, another stock subscriber, paid the other credit of $ 1,520.12. The trend of the testimony is to the effect...
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