Schaeffer v. Phœnix Brewery Co. Jacob M. Gruen

• Decision Date: 29 May 1877
• Citation: Schaeffer v. Phœnix Brewery Co. Jacob M. Gruen, 4 Mo.App. 115 (Mo. App. 1877)
• Parties: NICHOLAS SCHAEFFER, Respondent, v. PHŒNIX BREWERY COMPANY; JACOB M. GRUEN, STOCKHOLDER, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 115

NICHOLAS SCHAEFFER, Respondent,

v.PHŒNIX BREWERY COMPANY; JACOB M. GRUEN, STOCKHOLDER, Appellant.

St. Louis Court of Appeals, Missouri.

May 29, 1877.

1. In an action against a corporation, brought by the president thereof, service upon the president and secretary is good, where there is no vice-president.

2. Where the defendant, incorporated under the name of the “Phœnix Brewery Company, St. Louis, Mo.,” is sued as “Phœnix Brewery Company,” there is no variance and no misnomer, the words “St. Louis, Mo.,” being merely descriptive.

3. In a proceeding by motion for execution against a stockholder (Wag. Stat. 291, sec. 13), the defendant cannot demand a trial by jury as a matter of right.

4. Where the plaintiff, a stockholder, has obtained judgment against the corporation, the question as to whether his stock has been paid up cannot arise upon his motion for execution against another stockholder.

APPEAL from St. Louis Circuit Court.

Affirmed.

JECKO & HOSPES, for appellant: One cannot be both plaintiff and defendant in the same action.-- Methodist Church v. Stewart, 27 Barb. 553; Eastman v. Wright, 6 Pick. 316; Livingston v. Livingston, Const. (S. C.) 428; Blaisdell v. Ladd, 14 N. H. 129. Service of summons.-- Portland Bank v. Hyde, 2 Fairf. 196; Bosanquet v. Wray, 2 Marsh. 319; 6 Taunt. 597; Harvey v. Kay, 9 Barn. & Cress. 356; Griffith v. Chew, 8 Serg. & R. 30; Wag. Stat. 294, sec. 26. The remedy provided in section 13, page 291, of Wagner's Statutes, extends only to creditors who are not stockholders.-- Bailey v. Banckner, 3 Hill, 191; Andrews v. Collander, 13 Pick. 484; Harish v. First Parish, etc., 23 Pick. 112; Garrison v. Howe, 17 N. Y. 458; Wait v. Ferguson, 14 Abb. Pr. 379. Nor does section 13 apply to business and manufacturing corporations.-- Haskins v. Harding, 2 Dill. 100.

CHESTER H. KRUM, for respondent; H. N. HART and J. M. & C. H. KRUM of counsel: Being an officer or stockholder of a corporation does not disqualify one from suing the corporation.-- Culbertson v. Wabash Nav. Co., 4 McLean, 547; Anderson v. Blattau, 43 Mo. 47; Brinham v. Wellersburg Coal Co., 47 Pa. St. 49. Variance and misnomer.-- Burnham v. Bank, 5 N. H. 459; Kentucky Seminary v. Wallace, 15 B. Mon. 43; International Ins. Co. v. Davenport, 57 Mo. 289; Hammond v. Shepard, 29 How. 188; Thatcher v. National Bank, 19 Mich. 196; Pierce v. Somersworth, 10 N. H. 369; Bover v. State Bank, 5 Ark. 233; Washington National Bank v. Lee, 112 Mass. 521; South School District v. Blakeslee, 13 Conn. 227. The liability of stockholders is several, not joint.-- State Savings Bank v. Kellogg, 63 Mo. 540; Perry v. Turner, 55 Mo. 423; Bank v. Ibbotson, 24 Wend. 473: Baker v. Backus, 22 Ill. 79. A stockholder who is a creditor may enforce his claim as any other creditor.-- Pierce v. Partridge, 3 Metc. 44-48; Dauchy v. Brown, 24 Vt. 179-205; Simonson v. Spencer, 15 Wend. 548. Defendant cannot demand a jury as a matter of right in this proceeding.-- Hinsley v. Baker, 10 Mo. 158; Edmundson v. Garnhart, 59 Mo. 85.

BAKEWELL, J., delivered the opinion of the court.

This was a proceeding under section 13 of the act concerning corporations (Wag. Stat. 291), against defendant as a stockholder in the corporation.

Section 13 provides: “If any execution shall have been issued against the property or effects of a corporation, and if there cannot be found whereon to levy such execution, then such execution may be used against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; provided, that no execution shall issue against any stockholder except upon an order of the court in which the action shall have been brought, made upon motion in open court, after sufficient notice in writing to the person sought to be charged, and upon such motion such court may order such notice to be issued accordingly.”

Plaintiff had obtained judgment by default against the Phœnix Brewery Company, a manufacturing corporation, organized under the general law of this State, returned nulla bona. On a hearing, the defendant demanded a jury, which was refused.

Plaintiff then offered in evidence the judgment and proceedings in the original cause, to which defendant objected, on the ground that the judgment was void on its face for want of due service of summons, and that there was a variance between the name of the corporation sued and the name in the articles of association and certificate offered in evidence. There was a judgment for plaintiff; and defendant appeals.

1. The first point made by appellant is that the service in the original suit was bad because made upon the plaintiff in the suit himself, as president of the defendant corporation.

The service was made upon Nicholas Schaeffer, president, and John Ahlfeld, secretary of the defendant, the Phœnix Brewery Company. It appeared that Hurck, the last vice-president of the company, was dead before the institution of suit. There is no suggestion of fraud in regard to the judgment against the defendant corporation; and it is not, and, in view of the decisions on this point in this and other States, could not be successfully contended that being an officer or stockholder of a corporation disqualifies from maintaining an action against the company. Anderson v. Blattau, 43 Mo. 42; Brinham v. Wellersburg Coal Co., 47 Pa. St. 43. It is true that no one can be both plaintiff and defendant in the same action; but here Schaeffer is not defendant. He is plaintiff, and the Phœnix Brewery Company defendant. It is, however, said that, as president, he was the representative of the company, and the proper person to take steps to defend the suit.

The law provides (Wag. Stat. 294, sec. 26) that when summons is issued against an incorporated company, service on the president or other chief officer of such company, or, in his absence, by leaving a copy thereof at any business office of said company, with the person having charge thereof, shall be deemed sufficient service.

It appears, therefore, that service upon the president of the company is not indispensable; the president is a chief officer of the company, but service upon another chief officer is good, and in the absence of the president the writ may be left at the office of the company, with the person in charge.

We think that it is a reasonable construction of the law to say that, when the vice-president sues the company, service upon another chief officer is sufficient, and that when the president is dead, the secretary is such another chief officer within the meaning of the law. We do not say that where the president of a corporation has a bona fide claim against it he might not direct summons to be served upon himself as president, in his own suit, and that such service would be necessarily bad; but we think that in this case, service being had upon both the president and the secretary, it was a good service, though the president was the plaintiff in the suit. If, as is contended by counsel for appellant, service upon the president in such a case would be worthless, then the very case seems to arise for which the statute provides; the president is not absent, but there is no president upon whom service can be made, and in that case it is made upon another chief officer.

2. It is next contended by appellant that the judgment is void because the defendant is sued as “Phœnix Brewery Company,” whilst its articles of association show its corporate name to be “The Phœnix Brewery Company, St. Louis, Mo.” There is here no substantial variance. Enough appears to show what corporation was intended, and there is no question of identity in the case. A misnomer not pleaded in abatement is disregarded when the name has not been substantially mistaken. Burnham v. Bank, 5 N. H. 459; ...