Provident Sav. Inst. v. Jackson Place Skating & Bathing Rink

• Decision Date: 31 March 1873
• Citation: 52 Mo. 557
• Parties: PROVIDENT SAVINGS INSTITUTION, Respondent, v. The JACKSON PLACE SKATING AND BATHING RINK--BENJAMIN HORTON Appellant,
• Court: Missouri Supreme Court

52 Mo. 557

PROVIDENT SAVINGS INSTITUTION, Respondent,

v.The JACKSON PLACE SKATING AND BATHING RINK--BENJAMIN HORTON Appellant,

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Seneca N. Taylor for Appellant.

Laws and amendments to constitutions touching remedies may be repealed or amended according to the will of the Legislature. (Sturgis vs. Crowninshield 4, Wheat. 122; Cooley's Const., Lim., 286-7.)

Hitchcock, Lubke & Player for Respondents.

I. Although the double liability clause was repealed in November, 1870, and before respondent obtained judgment, such repeal cannot affect the rights of respondent which accrued while said clause was in force.

If the repealing amendment purported to affect such rights, it would be unconstitutional and void under Sec. 10 of Art. 1 of the U. S. Constitution. (Hawthorne vs. Calef, 2 Wal. 10.) But it does not purport to affect such rights. [W. S. (1872,) p. 66 a.]

II. Under the instruction given for appellant, the Court must have found either that Clark was insolvent at the time of the transfer, or that the transfer was a mere sham, and in either event it was void against plaintiff. (McLaren vs. Franciscus, 43 Mo. 452, Angell and Ames on Corp., Art. 623.)

WAGNER, Judge, delivered the opinion of the court.

This case is the same in all particulars as the one of the same plaintiff's against Parker, previously decided at this term of the court, with the exception, that, before the judgment was obtained and the execution issued against the corporation, Horton had transferred his stock.

It seems, that Horton owned three shares of one hundred dollars each: that at the time the transfer was made the Skating and Bathing Rink Co. was hopelessly insolvent: that the transfer was made for the nominal consideration of one dollar to one Clark, and the evidence strongly tended to show that Clark was also insolvent.

At Horton's request the court declared the law to be, that if he transferred his stock for a valuable consideration to Clark, and Clark was not insolvent at the time of the transfer, then the motion for judgment against him should be overruled. The Court refused the other instruction which he asked, and then found for plaintiff.

In McClaren vs. Franciscus (43 Mo. 452) it was held, that members of a corporation who would be liable, if they continued members, to the creditors of the corporation, would still be treated as members, if they had disposed of their interest to an insolvent, or with...