Stearns v. Sopris

• Court: Colorado Court of Appeals
• Writing for the Court: BISSELL, P.J., (after stating the facts.)
• Citation: Stearns v. Sopris, 4 Colo. App. 191, 35 P. 281 (Colo. App. 1894)
• Decision Date: 09 January 1894
• Parties: STEARNS et al. v. SOPRIS.

35 P. 281

4 Colo.App. 191

STEARNS et al. v. SOPRIS.

Court of Appeals of Colorado

January 9, 1894

Appeal from district court, Pueblo county.

Action by Thomas B. Stearns and John Roger, partners as Stearns Roger & Co., against the Trinidad Rolling Mills & Iron Company, defendant, and E.B. Sopris and others, garnishees. From a judgment for garnishee Sopris, plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by BISSELL, P.J.:

This controversy grows out of an attempt by a creditor of the Trinidad Rolling Mills & Iron Company to collect his debt by proceeding against a subscriber to the stock of the company to compel him to pay his subscription. Early in 1888 divers people devised the scheme of raising a company to build and operate a rolling mill near the city of Trinidad, in Colorado. The promoters did not subscribe for any very large proportion of the stock, but it was evidently their plan to obtain subscriptions from the citizens of that city sufficient to insure the success of the enterprise on the basis of the public benefits which would result from the establishment of that manufactory. A subscription paper was prepared and circulated. It is as follows: "Whereas, the undersigned citizens of Trinidad are desirous of organizing a corporation to be known as the Trinidad Rolling Mills and Iron Company, for the purpose of building a rolling mill in or near the city of Trinidad; and whereas, it has been decided to organize said corporation with a capital stock of $200,000; wherefore it is agreed by us, the undersigned subscribers, to take stock in said Trinidad Rolling Mill and Iron Company, in the sum set opposite our names, and to pay twenty-five per cent. of our subscription on or before the 10th day of April, A.D.1888, and the remainder in three equal installments, payable respectively, on the 10th day of June 1888, the 10th day of August, 1888, and the 10th day of October, 1888." The paper was circulated, and subscriptions secured amounting to a little upwards of $60,000. Without waiting to obtain subscriptions for the entire capital, or failing in the attempt, which is not settled by the record, the promoters on the 10th of April, 1888, held a meeting to organize the company. The articles of corporation would seem to have been then executed by some of the parties interested and presumably filed for record according to the statute. Some of the interested parties who were present at the meeting participated in the proceedings, signed the stock book in furtherance of their subscriptions, named the persons who were to be directors for the first year, and in general did what was necessary to perfect a corporate organization. There is considerable dispute in the record as to the part which the garnishee, Sopris, took at this meeting. Some witnesses say that he was present and took part in the meeting to the extent of voting for the people who were to serve as directors the first year. This he denies, and states that he declined to vote, and did not sign the stock subscription book. The latter fact is conceded. He seems, however, to have done nothing further with reference to the matter, took no further interest in the enterprise, declined to pay the sum that was due on the 10th of April, and paid nothing afterwards. After the company was organized as stated, it proceeded to do business, erected the mills so far as might be with the capital at their command, and attempted to carry out the purposes of their organization. The company subsequently mortgaged its property to secure some debt which was not paid at maturity, and the mortgagee closed out the concern. The present plaintiffs in error had sold the company some machinery, for which they had not been paid. They obtained judgment against the corporation. Their execution was returned unsatisfied, and thereupon they issued a process of garnishment, and had it served on sundry of the subscribers, among whom was the defendant in error, Sopris, and by these means sought to compel payment of the unpaid subscriptions. It is conceded that Sopris signed the above subscription list, and placed the sum of $1,000 opposite his name. In answering the process, Sopris denied that he was indebted to the company by the general statement of "No" in response to the question, and the garnishing creditors took issue, set up the major portion of the foregoing facts, and the case came to trial thereon. At the trial, the facts were all proven by an agreed statement which contained substantially the foregoing narration. Judgment passed in favor of the garnishee, and Stearns, Roger & Co. prosecuted the appeal.

Hartman & Glenn, for appellants.

Bo Sweeney and John A. Gordon, for appellee.

BISSELL, P.J., (after stating the facts.)

The most troublesome of the many questions which this record presents will be left unsolved, for the decision can be safely rested on the application of a well-established...