Stephens v. Stevens

• Decision Date: 10 February 1904
• Docket Number: 1491
• Citation: 75 P. 619,27 Utah 261
• Court: Utah Supreme Court
• Parties: MARY E. STEPHENS and ZYLPHA J. STEPHENS, Respondents, v. SIDNEY STEVENS, FRANK J. STEVENS and SIDNEY O. STEVENS, Appellants, and SOLOMON C. STEPHENS, WILLIAM J. STEPHENS and DAVID KAY, Defendants

75 P. 619

27 Utah 261

MARY E. STEPHENS and ZYLPHA J. STEPHENS, Respondents, v. SIDNEY STEVENS, FRANK J. STEVENS and SIDNEY O. STEVENS, Appellants, and SOLOMON C. STEPHENS, WILLIAM J. STEPHENS and DAVID KAY, Defendants

No. 1491

Supreme Court of Utah

February 10, 1904

Appeal from the Second District Court, Weber County. --Hon. W. M McCarty, Judge.

Action to recover on a stock subscription. The opinion states the facts. From a judgment in favor of the plaintiffs, the defendants, indicated, appealed.

Motion to dismiss appeal sustained.

H. H Henderson, Esq., and P. L. Williams, Esq., for appellants.

A. G Horn, Esq., and T. D. Johnson, Esq., for respondents.

LEWIS District Judge. BASKIN, C. J., and BARTCH, J., concur.

OPINION

LEWIS, District Judge.

--This action was brought by the respondents against the appellants to recover on an alleged liability on stock subscription in the South Ogden Land, Building & Improvement Company. Appellants in their answer and, cross-complaint set up, among other things, that there was a nonjoinder of parties defendant in the action, alleging that Solomon C. Stephens William J. Stephens, and David Kay were stockholders in said corporation at all times since the organization thereof, and were necessary parties defendant in the action, equally liable with the appellants, in proportion to the shares respectively held and owned by them in said company, and that a complete determination of the matters involved in the action could not be had without the presence of the said Solomon C. and William J. Stephens and said David Kay as parties thereto; and thereupon prayed that said Solomon C. and William J. Stephens and said David Kay be made parties defendant in the action. After a hearing said Stephenses and said Kay were made parties defendant. Solomon C. and William J. Stephens appeared in person and filed their answer; David Kay made no appearance, no process having been served upon him, he being absent from the State of Utah and a nonresident thereof at all times during the pendency of the action. Judgment was rendered in favor of the plaintiffs, and against the defendants Sidney Stephens, Frank J. Stevens, Sidney O. Stevens, William J. Stephens, and Solomon C. Stephens, for the sum of $ 12,903.96, subject, however, to the following: "That the defendant Sidney O. Stevens in no event shall be liable for or compelled to pay of the principal amount of said judgment to exceed $ 850.00, and that the defendant Frank J. Stevens in no event shall be liable for or compelled to pay of the principal amount of said judgment to exceed $ 850.00, it being the intent hereby that in no event shall the defendants Sidney O. Stevens and Frank J. Stevens be compelled to pay, or that this shall be construed to be a judgment against either of them for a sum greater than $ 850.00 each, which is hereby determined to be the amount of their liability to the South Ogden Land, Building & Improvement Company, and to the plaintiffs herein. It is further ordered and decreed that plaintiffs recover of and from the defendants their costs taxed at $ ; also that in case any of the defendants in this action shall pay or be compelled to pay a sum in excess of their pro rata share as shown by the findings of fact and conclusions of law in this case, that after such payments have been made, and upon application to the court, a judgment of this court may be entered against the other defendants for such excess." The defendants Sidney Stevens, Frank J. Stevens, and Sidney O. Stevens, moved the court to vacate...