Priest v. Glenn

• Decision Date: 13 June 1892
• Docket Number: 82.,81
• Citation: 51 F. 405
• Parties: PRIEST v. GLENN.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 405

PRIEST v. GLENN.

Nos. 81, 82.

United States Court of Appeals, Eighth Circuit.

June 13, 1892

W. H Clopton, for plaintiff in error, Priest.

T. K Skinker, for defendant in error, Glenn.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRAS District Judge.

Upon the face of the record in this cause it appears that John G Priest, plaintiff in error, was duly appointed executor of the last will of Daniel G. Taylor, deceased, on the 14th of October, 1878, and notice of such appointment was given as required by the statutes of Missouri; that the present action against said executor was brought in the United States circuit court for the eastern district of Missouri on the 16th day of March, 1888, by John Glenn, trustee, for the purpose of enforcing against the estate of said Daniel G Taylor the collection of an assessment of 50 per cent. made upon the capital stock of the National Express & Transportation Company, by virtue of a decree entered by the circuit court of Henrico county, Va., on the 26th day of March, 1886, under the circumstances set forth in detail in the opinion filed by this court in Liggett v. Glenn, 51 F. 381, (at the present term,) it being claimed that said Daniel G. Taylor had subscribed for 50 shares, of $100 each, of the capital stock of said corporation. Nearly all the errors assigned in this cause are identical with those presented in the cases of Liggett v. Glenn, supra; Priest v. Glenn, 51 F. 400, and Dorsheimer v. Glenn, Id. 404, (decided at the present term) and the rulings made in those cases decide all the questions, save two, presented by the record in this cause.

It appears that in September, 1884, the defendant in error brought a suit in equity in the United States circuit court for the eastern district of Missouri against the present plaintiff in error, to enforce payment of an assessment for 30 per cent. made by the chancery court of the city of Richmond, upon the capital stock of the National Express & Transportation Company, under date of December 14, 1880, upon the same subscription to the capital stock of the company made by Daniel G. Taylor, which forms the basis of the present action. Upon demurrer to the bill, the court held that the statute of the state of Missouri was a bar to the suit, and dismissed the bill. The judgment of the court in that case remains in force, no appeal having been taken therefrom. By the subsequent ruling of the supreme court of the United States in Hawkins v. Glenn, 131 U.S. 319, 9 S.Ct. 739, it appears that the view taken of the law by the circuit court, and upon which was based the judgment dismissing the bill, was erroneous.

On the trial of this cause, the plaintiff asked leave to file an amendment to the answer, pleading the judgment in the former case as a bar to the present action, it being admitted that the judgment in that case was based solely on the statute of limitations. The court below refused the motion for leave to amend, and this action of the court is assigned as error.

In our judgment, the proceedings had in the former case for the recovery of the first call made for 30 per cent. upon the stock are not a bar to the present action. The judgment though it now appears to have been based upon an erroneous view of the law applicable to the case, is nevertheless a valid judgment, and concludes the trustee as to the assessment which formed the subject-matter of that suit. It does not, however, settle the rights of the parties growing out of the subsequent call upon the stock for 50 per cent. The bill filed in that case averred that Taylor had subscribed to the capital stock of the company, and that as a stockholder he was liable for the unpaid portions of the stock. The demurrer filed to the bill admitted the facts charged. If in that case an issue of fact had been tendered upon the question whether Taylor had subscribed for the stock or other like matter, which, if found in favor of Taylor, would show that he never had been a stockholder, and hence would not be liable for any calls made upon the stock, it might well be that an adjudication on such an issue would bar the right of the trustee to again assert that he...