Roe v. Durham

• Decision Date: 10 February 1916
• Docket Number: 1 Div. 887
• Parties: ROE et al. v. DURHAM.
• Court: Alabama Supreme Court

71 So. 109

195 Ala. 584

ROE et al. v. DURHAM.

1 Div. 887

Supreme Court of Alabama

February 10, 1916

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Joseph F. Durham against John T. Roe, Bell McGowin Roe, Lena McGowin, and the Roe Drug Company, to hold the corporation liable in judgment for a certain debt owed to the corporation by one W.T. McGowin, and to compel its payment out of corporate assets. From a decree overruling demurrers defendants appeal. Reversed and rendered.

The parties named as respondents were, on November 14, 1914 directors and sole stockholders of the corporation which was on December 12, 1914, voluntarily dissolved by them, by proceedings under and in conformity with section 3510, Code 1907, whereby they came into possession of the corporate assets. The theory and equity, if any, of the bill are disclosed by the allegations of paragraph 3 as follows:

Complainant heretofore brought a suit in the circuit court of Mobile county, Ala., against one W.T. McGowin as defendant and as such plaintiff in said suit, recovered on January 27, 1914, against said W.T. McGowin a judgment in the sum of $2,326.16, together with $9.65 costs, no part of which said judgment has ever been satisfied; that on September 1, 1914, complainant caused an alias execution to be issued on said judgment which said execution was on the same day levied on all the stock, shares, or interest of the said W.T. McGowin in the Roe Drug Company, a corporation; that the officer making said levy went to the office or principal place of business of said Roe Drug Company, a corporation, and demanded of an officer of said corporation, who was there present and who was not the defendant in the suit in which said judgment was rendered, a statement in writing under oath of the amount of W.T. McGowin's stock, the number of his shares or the extent of his interest in said corporation and left with said officer a copy of the writ; that the said corporation neglected or failed for more than 10 days after said levy to deliver to the officer making the levy or to any other officer duly authorized by law to make the returns, such statement in writing under oath of the particulars demanded by said officer and of the value of W.T. McGowin's stock, shares, or interest in the said corporation. Wherefore complainant says that the Roe Drug Company became liable to him under the terms of section 4105, Code 1907, in the full amount of said judgment, $2,335.81.

The following demurrers were interposed by the personal respondents:

(1) There is no equity in the bill.

(2) There is no allegation in the bill that W.T. McGowin, the defendant in the judgment mentioned in the said bill, was the owner or holder of any of the corporate stock of the alleged Roe Drug Company at the time the alleged demand was made on an officer of the said Roe Drug Company for a statement as to the amount of stock, or number of shares then held or owned by W.T. McGowin, the defendant in the judgment.

(3) There is no allegation in the bill that W.T. McGowin, the defendant in the judgment, ever had at any time held or owned any stock or shares in the Roe Drug Company.

(4) Because the complaint fails to allege the name of the officer upon whom the alleged demand was made.

(5) Because the bill shows upon its face that it is an attempt to collect a penalty as against the dissolved corporation as provided for under section 4105, Code 1907, and is a proceeding to collect same under the provisions of section 3516, Code 1907, while the said latter section makes no provision for, nor embodies, nor does it authorize such a procedure as this against the directors or stockholders of a dissolved corporation for the collection of a penalty.

The corporation assigned an additional ground of demurrer, viz., its misjoinder, as a party respondent.

Gordon & Edington, of Mobile, for appellants.

Hugh M. Caffey, Jr., and Gregory L. & H.T. Smith, all of Mobile, for appellee.

SOMERVILLE J.

When a corporation has been dissolved by a decree of the chancery court on petition of its majority stockholders, under the provisions of section 3511 of the Code, it is not then within the influence of section 3516 of the Code, providing that:

"Corporations whose charters expire by limitation and

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