Paxon v. Talmage

• Decision Date: 31 October 1885
• Citation: 87 Mo. 13
• Parties: PAXON, Administrator, Plaintiff in Error, v. TALMAGE.
• Court: Missouri Supreme Court

87 Mo. 13

PAXON, Administrator, Plaintiff in Error,

v.TALMAGE.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Smith & Harrison for appellant.

(1) The errors in the petition which would be reached by a motion to strike out parts of the answer, when treated as a demurrer, must be such as a plea to the merits cannot waive or verdict cure. Bliss on Code Pleading, 417, 423; 1 Chitty's Pleading, 668 and notes. No such errors appear in the petition. It is good as a motion for execution. (2) The petition was good as an original suit. R. S., sec. 745. It stated facts sufficient to constitute a cause of action and a finding and judgment based upon it would have been good. State Sav. Ass'n v. Kelley, 52 Mo. 587, 590; Thompson on Stockholders, secs. 320, 321; Paine v. Stewart, 33 Conn. 516, 531; Keplor v. Lademan, 11 Mo. App. 550; Lionberger v. Broadway Sav. Bk., 10 Mo. App. 499. (3) There is no statute whereby a cause can be revived where death occurs between the rendition of the final judgment and the suing out of the writ of error. The statutes all relate to causes spending at the time of the death. (4) A motion for new trial is not necessary in cases like this.

Thos. Metcalfe and Thos. J. Portis for respondent.

(1) No suggestion of Turner's death was ever made of record, and there has never been any revivor of the ease on the part of his administrator, and without this he cannot prosecute this writ of error, and it should be dismissed. Childers v. Gaza, 1 Mo. 399. (2) The grounds of the motion for a new trial are not set forth, and do not appear in the record and bill of exceptions. Rotchford v. Creamer, 65 Mo. 48; Stevenson v. Saline Co., 65 Mo. 425; Collins et al. v. Barding, 65 Mo. 496. (3) An original action cannot be changed by amendment so as to become a motion for an execution against a stockholder under our statute. (4) A motion for an execution against a stockholder of a corporation cannot be maintained as an independent, original action; it is incidental to and must be filed in the action in which the party obtains his judgment against the corporation.

SHERWOOD, J.

Under the provisions of section 736, Revised Statutes, where execution has issued against a corporation and been returned nulla bona, then it is competent for the creditor to have execution issued against any stockholder to the extent of the amount of such stockholder's unpaid balance on his stock. This section, however, contains the express proviso that no execution shall issue against a stockholder except upon an order of the court in which the suit shall have been instituted, made upon motion in open court, after sufficient notice, etc. It is thus readily apparent that the proceeding authorized by this section is not an original but a supplemental one; merely auxiliary to a former proceeding in the same court, which proceeding has resulted in a judgment in that court against the corporation, followed by the issuance of a barren execution.

The amended...