Nichols v. Stevens

• Decision Date: 27 February 1894
• Parties: NICHOLS v. STEVENS.
• Court: Missouri Supreme Court

25 S.W. 578

123 Mo. 96

NICHOLS v. STEVENS.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

ENFORCING STOCKHOLDER'S LIABILITY — PLEADING — CONCLUSIVENESS OF JUDGMENT — REMOVAL OF CAUSES.

1. In a proceeding to procure the issuance of an execution against a stockholder on a default judgment against the corporation, it is no defense that the debt for which the judgment was obtained was not the debt of the corporation, as the judgment in such a proceeding is conclusive upon the stockholder.

2. In a proceeding to procure the issuance of an execution against a stockholder on a judgment against the corporation, an answer alleging that the judgment was obtained by fraud, without setting up the facts constituting the alleged fraud, is bad.

3. An exception to a ruling permitting the amendment of a petition is abandoned by not being preserved in the bill of exceptions.

4. When a cause has been removed from a state to a federal court, and remanded because the petition for removal did not set up the diverse citizenship of the parties at the commencement of the action, a second removal on the same grounds is not allowable.

5. A petition for the removal of a cause to a federal court must be made at or before the expiration of the time to answer.

Appeal from circuit court, Pettis county; Richard Field, Judge.

Proceeding by William Nichols against Robert S. Stevens. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts appear in the following statement by SHERWOOD, J.:

This proceeding had its origin in a judgment rendered January 26, 1876, in the Pettis circuit court, in favor of plaintiff and against the Texas & Atlantic Refrigerator Car Company. The record in such original suit, introduced in evidence, shows a petition filed December 11, 1875, in ordinary form, containing the usual allegations, and is based on two promissory notes for $5,800 and $4,200 respectively, the former dated May 6, 1875, and the latter dated May 14th of that year; which notes were executed by said company through its president, J. R. Barrett, made payable to said Barrett, and by him indorsed to plaintiff. Joel Ellis was also one of the indorsers on said notes. Service was had in Sedalia, Pettis county, Mo., at which place the headquarters and general business office of the company was located, on Barrett, the president of the company, the day the petition was filed, and judgment went by default. On January 31, 1876, execution was issued on the judgment thus recovered, and a sale thereunder of a one-half interest in an ice house occurred, resulting in realizing the sum of $25, said Barrett being the purchaser, and the judgment being credited with the sum of $12. The execution was then returned nulla bona. In January, 1881, plaintiff commenced a proceeding in the Pettis circuit court to procure the issuing of executions against the defendant and one H. D. Mirrick, as stockholders in the Texas & Atlantic Refrigerator Car Company, against which plaintiff had previously recovered judgment, on which execution was issued, and returned nulla bona, except as to the costs and $12 on the judgment. The original pleading, filed in January, 1881, averred the necessary facts under section 736, Rev. St. 1879, (now section 2517, Rev. St. 1889,) and was the same in substance and effect as the amended motion on which the trial was had, and the judgment now appealed from was rendered, except that the name of the corporation was inserted in the title of the cause, and but one pleading was filed, in which the relief sought was the issuing of the two executions against Stevens and Mirrick respectively, the allegations and prayers as to each being separately stated. Summons was issued to the sheriff of Pettis county on February 2, 1881, and returned April 16, 1881, non est as to defendant Stevens. An alias summons issued May 14, 1881, and was served on Stevens August 20, 1881. On September 13, 1881, it being the third day of the September term, Stevens appeared, and obtained leave to file his answer in 60 days after that term of court. On January 3, 1882, being the first day of the January term, Stevens filed a demurrer, and on February 1, 1882, being the twenty-sixth day of the January term, he withdrew his demurrer, and again obtained leave to file answer in 60 days after that term, and on April 21, 1882, in vacation, he filed an answer. Afterwards, on May 4, 1882, it being the fourth day of the May term, defendant Stevens filed petition to remove the case to the United States court, and on May 8th, being the seventh day of the May term, he filed bond for such removal. On such petition of Stevens and Mirrick, the cases were together sent to the United States circuit court for the proper district. In that court the defendants filed answer identical with the last one filed, and a trial was had before a jury, on the demand of the defendants, which resulted in separate verdicts and judgments against the respective defendants. Stevens took his branch of the case to the United States supreme court by writ of error, and, while the same was pending, Mirrick filed a petition for injunction to restrain the issuing of an execution against him. Before the same was acted on, the supreme court of the United States reversed the judgment in the Stevens Case, and remanded the case to the United States circuit court, with directions to remand the case to the Pettis circuit court, for the reason that the case had not been properly removed from the state court, and the federal courts had never acquired jurisdiction, by reason of the fact that the affidavit for removal did not set forth the diverse citizenship of the parties at the institution of the suit. See Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518. Thereupon a stipulation was filed, and orders were made in the United States circuit court for the return of the cases to the Pettis circuit court. Thereafter, on May 23, 1890, the said stipulation and orders, and the original papers, etc., therein referred to, were filed in the Pettis circuit court. On the day of the return of the cause to the Pettis circuit court, the defendants filed a motion, verified by affidavit, to amend by interlineation their petition for removal, showing the facts heretofore mentioned as omitted. This motion being denied, they excepted, as shown by the bill of exceptions. Then, on the same day, plaintiff filed separate amended motions against the defendants Stevens and Mirrick respectively. The bill of exceptions contains no mention of any exceptions being saved to the action of the court in permitting these amended motions to be filed, but the record recites that the defendants excepted to the filing of such amended motions.

The amended motion against defendant was the following: "In the Circuit Court of Pettis County, Missouri, May Term, 1890. Wm. Nichols, Plaintiff, vs. Robt. S. Stevens, Defendant. Now again comes the plaintiff and, leave of court therefor first being had and obtained, for his amended motion or petition states: That the Texas and Atlantic Refrigerator Car Company was, on May 1st, 1875, and ever since has been, and now is, a corporation duly created and organized under the laws of the state of Missouri, and having its chief office in Pettis county, Missouri. That on the 6th day of May, 1875, said corporation, by its president and duly-authorized agent, executed and delivered its certain promissory note, dated on that day, to one J. R. Barrett, whereby it promised, for value received, to pay, three months after the date thereof, to the order of J. R. Barrett, at the Commercial Bank of St. Louis, the sum of fifty-eight hundred dollars, which said note was afterwards by J. R. Barrett indorsed and delivered to this plaintiff for a valuable consideration. That on the 14th day of May, 1875, the said corporation, by its president and duly-authorized agent, executed and delivered to said J. R. Barrett its other promissory note, dated on that day, whereby it promised for value received to pay, three months after date thereof, to the order of J. R. Barrett, at the Commercial Bank of St. Louis, the sum of forty-two hundred dollars, which said note was afterwards by J. R. Barrett indorsed and delivered to this plaintiff for a valuable consideration. That, default having been made in the payment of both of said notes, this plaintiff brought suit upon both of said notes in the circuit court of Pettis county, Mo., on December 11th, 1875, against said corporation, and on the 26th day of January, 1876, at the January term, 1876, of said court, obtained judgment on said notes against said corporation for the sum of ten thousand three hundred and seventy-seven and twenty-one one-hundredths dollars, ($10,377.21,) with 10 per cent. per annum interest thereon, and for his costs in said suit taxed at the sum of six and seventy-five one-hundredths dollars. That afterwards, on the 31st day of January, 1876, this plaintiff caused an execution to be issued on said judgment from the office of the clerk of said court, which said execution was on the first day of February, 1876, placed in the hands of the sheriff of Pettis county, Missouri, and was by said sheriff on the 24th day of February, 1876, levied upon all the property of said corporation which could be found in said county. That said sheriff, on the 7th day of March, 1876, sold said property for the sum of twenty-five dollars, of which he applied to the costs the sum of $13, and credited upon said judgment the sum of twelve dollars, and returned said execution not satisfied as to the balance of said judgment; `there being no other goods, chattels, or property found belonging to the defendant, upon which to levy this execution.' Plaintiff states that, except said sum of twelve dollars, no part of said judgment has ever been paid, and that the balance thereof, with the interest thereon, remains unpaid, and is still due to plaintiff. Plaintiff further states that the...