The Remington Paper Company v. Hudson

• Decision Date: 11 January 1902
• Docket Number: 11,940
• Citation: 67 P. 636,64 Kan. 43
• Parties: THE REMINGTON PAPER COMPANY v. J. K. HUDSON
• Court: Kansas Supreme Court

67 P. 636

64 Kan. 43

THE REMINGTON PAPER COMPANY v. J. K. HUDSON

No. 11,940

Supreme Court of Kansas

January 11, 1902

Decided January, 1902.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CORPORATIONS--Liability of Stockholder--Election of Remedies. A creditor who obtains a judgment against a corporation and, because an execution thereon is returned unsatisfied, brings a proceeding against a stockholder of the corporation to establish a stockholder's liability on the judgment, will not afterward be permitted to amend his petition and change his proceeding by alleging the dissolution of the corporation and basing his right of recovery against the stockholder on the promissory notes which had been merged in the judgment originally set up and made the basis of the claim against the stockholder.

Quinton & Quinton, for plaintiff in error.

Welch & Welch, and T. W. Harrison, for defendant in error.

JOHNSTON J. DOSTER, C. J., SMITH, GREENE, JJ., concurring.

OPINION

JOHNSTON, J.:

On December 20, 1897, the Remington Paper Company recovered a judgment against the Topeka Capital Company for $ 8630, which was later taken to the supreme court for review. While it was pending in this court, and on June 2, 1898, this proceeding was brought by the paper company to enforce a stockholder's liability against J. K. Hudson. The petition alleged the rendition of the judgment against the Capital company; the issuance of an execution thereon which had been returned unsatisfied for the reason that no property could be found whereon to levy the same; that Hudson was the owner and holder of a large amount of stock in the Capital company, and for his stockholder's liability on the judgment against that company the plaintiff demanded judgment against him.

On August 1, 1899, the paper company obtained leave to amend its petition, and in the amended petition, after the first count, which set up the judgment against the Capital company and liability of Hudson by reason of the judgment, the paper company in several causes of action specifically set up a number of promissory notes given by the Capital company to the paper company--the same notes upon which the judgment heretofore mentioned was rendered. It alleged that the notes were due and unpaid, and, by reason of the fact that the Capital company had suspended business for more than a year, and that J. K. Hudson was a stockholder in that company, judgment was claimed against him upon the promissory notes. There was a further allegation in the amended petition that the judgment rendered against the Capital company had been taken to the supreme court; that no supersedeas bond had been filed; that this proceeding against Hudson had been continued from term to term; and that the statute of limitations was about run against Hudson upon the notes because the Capital company had ceased to do business more than a year before that time.

A motion was made by the defendant to strike from the amended petition all the averments except those in the first count thereof, for the reason that the averments challenged changed the claim and cause of action therein from that set up in the original petition, and because the paper company could not maintain an action on the promissory notes against Hudson. The court sustained the motion and struck out every count of the petition except the first one. Of this ruling complaint is made.

No error was committed in striking out the causes of action based upon the promissory notes,...