Tibbalis v. Wash. Libby.
| Decision Date | 31 March 1881 |
| Citation | 97 Ill. 552,1881 WL 10436 |
| Parties | CHARLES M. TIBBALIS et al.v.WASHINGTON LIBBY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
Messrs. HARRISON & WHITEHEAD, for the appellants:
The Great Western Insurance Company was a corporation de facto under the general insurance law of Illinois. Tibballs v. Libby, 87 Ill. 142; Upton v. Hansbrough, 3 Bis. (U. S.) 417; Thompson v. Candor, 60 Ill. 244; Ramsey v. P., M. & I. Co. 55 Id. 311; Spier v. Crawford, 14 Wend. 20; Abbott v. Aspenwall, 26 Barb. 202; Palmer v. Lawrence, 3 Sandf. 161; Ogilvie v. Knox Ins. Co. 22 How. 380; In re Reciprocity Bank, 22 N. Y. 17; Rev. Stat. 1874, p. 593; Denfee v. Old Colony and Fall River R. R. Co. 5 Allen, 242; Dudley v. Kentucky High School, 9 Bush, 578; Angell & Ames on Corp. sec. 449; Springer v. I. R. R. Co. 19 Ill. 174; Currie v. M. Ass. Society, 4 Henning & Munford, 315; Ill. R. R. Co. v. Zimmer, 20 Ill. 658; U. S. of S. v. Underwood, 9 Bush, 617; McHose v. Wheeler, 45 Pa. St. 41; Hope M. F. I. Co. v. Beckman, 47 Mo. 97; W. M. R. R. Co. v. Eastman, 34 N. H. 136; Bradley v. Ballard, 55 Ill. 420; Coffin v. Rich, 45 Me. 509. The appellee was either a trustee or director--a corporator, subscriber or stockholder in the company, or perhaps all these. Collyer on Part. sec. 86; Buckingham v. Burgess, 3 McLean, 550; Hope M. F. I. Co. v. Eastman, 34 N. H. 136; Dowes v. Naper, 91 Ill. 44; Upton v. Hansbrough, 3 Bis. 426; Ogilvie v. Knox Ins. Co. 22 How. 380; U. S. of S. v. Underwood, 9 Bush, (Ky.) 621; Scott v. Dupuyster, 1 Edw. Ch. (N. Y.) 542; Spier v. Crawford, 14 Wend. 20; Cole v. Ryan, 52 Barb. 168; Guy v. Keys, 30 Ill. 413; Coffin v. Rich, 45 Me. 509; Stanley v. Stanley, 26 Id. 196; Oliver Lee's Bank, 21 N. Y. 11; Payson v. Witters, 5 Bis. 273; French v. Teschemaker, 24 Cal. 518; Chase v. Lord, 6 Abbott's New Cases, 258; 4 N. Y. R. S. p. 210; Rev. Stat. 1874, p. 595; Butler v. Walker, 80 Ill. 345; Tibballs v. Libby, 87 Id. 142.
The whole amount of the capital stock of said company had not been paid in, and a certificate thereof recorded. Eaton v. Aspenwall, 6 Duer, 176.
That the company was indebted to the appellee, and therefore that appellee is to be liable to the appellants for such debt, to the amount of stock held by him, see Tibballs v. Libby, 87 Ill. 142.
Messrs. MONROE & BALL, for the appellee:
The individual liability of stockholders in a corporation, for the payment of its debts, is always a creature of the statute. At common law it does not exist. Pollard v. Baily, 20 Wall. 520.
The charter of this company was granted by a special act of the legislature in 1857, by which no liability, other than that created by the common law, was imposed upon the stockholder. This charter does not contain a clause allowing the legislature to change or vary it. This charter, thus passed by the legislature, and accepted, acted upon and complied with by the stockholders, constitutes a contract between the State and the corporation, inviolable in its nature, which the State can not impair by subsequent legislation. Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat. 516; Bridge v. Warren, 7 Pick. 344; State v. Branin, 3 Zabr. 484; Washington Bridge Co. v. The State, 18 Conn. 65; The People v. Platt, 17 Johns. 195; Cooley's Con. Lim. 278; Brown v. Hammel, 6 Pa. St. 86; State v. Heywood, 3 Rich. 389; People v. Manhattan Co. 9 Wend. 351.
The provision of law by which it is sought to impose a personal liability upon a stockholder, is to be strictly construed, as it is opposed to the common law. Gray v. Coffin, 9 Cush. 192; Chase v. Lord, 6 Abb. N. Cases, 258; McIntyre v. Ingraham, 35 Miss. 25.
In the view we take of this case, we are not permitted to consider it upon its merits.
By the 87th section of the Practice act, it is provided: “If any final determination, as specified in the preceding sections, shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which the cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree, the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy, in such cause.”
In giving a construction to this section, it has been held in a number of cases, that where there is a simple affirmance by the Appellate Court of the judgment of the court below, this court will presume that the Appellate Court found the facts in the same way they were found by the trial court, or, in other words, that both courts reached the same conclusion upon all controverted facts. So, it follows, that in all cases where the facts put in issue by the pleadings present, in law, a good cause of action, or defence, as the case may be, and no questions of law are raised by exceptions, instructions, or otherwise, and there is a simple affirmance of the judgment of the trial court, such judgment of affirmance must necessarily be affirmed by this court; for, under such circumstances, the presumption is that the case turned solely upon the facts, and the finding of the Appellate Court is, by the statute, made conclusive upon all questions of fact; hence this court is not permitted to review them.
Where issues of fact are formed, and the parties go to trial upon these issues, it may and often does happen, after the evidence is all in, the facts are so clearly settled that there is no longer any controversy with respect to them, and yet the court may, upon some erroneous theory of law, decide the case contrary to the rights of the parties on the admitted facts, and in such case, if the party injured by this misapprehension of the law on the part of the court, should sit by and take no exception to the ruling of the court upon the established facts, and there should be a simple affirmance of the judgment by the Appellate Court, he would be remediless in this court,--but such a result would be purely attributable to the party's own negligence, for the statute has amply provided for preserving in the record, for the purpose of review, any erroneous view of the law which the trial court may entertain. Where the cause is being tried before a jury, all such questions may be preserved through the instrumentality of appropriate instructions. Where it is tried by the court without a jury, the means provided for preserving such questions is equally convenient and efficient.
The 42d section of the Practice act provides: “In all cases in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court, and upon such trial, either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write “refused,' or ‘held,’ as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court.” In the present case, there was a declaration in assumpsit, setting forth certain facts upon which the plaintiffs relied for a recovery, to which there was filed a plea of the general issue, which directly put in issue the existence of those facts, and upon this issue the cause, by consent of parties, was submitted to the court without the intervention of a jury, and the court found the issue for the defendant and rendered judgment accordingly, and this judgment was affirmed by the Appellate Court.
The trial court was not asked to hold any proposition of law as applicable to the facts in the case, nor is any particular error of law pointed out or complained of by appellants. The sole ground of complaint is that the facts did not warrant the finding and judgment rendered by the trial court. As already stated, there is nothing in the present record which authorizes us to consider this question. As we have before seen, the judgment of the Appellate Court simply affirms the judgment of the trial court.
There is no recital of any facts in the final judgment of the Appellate Court, as contemplated by the statute, so as to authorize us to determine whether the facts established by the evidence warranted the judgment of the trial court. It is true that the judges of the Appellate Court, something over two months after the final judgment was entered in the cause, made out, under their respective signatures, a certificate of some of the facts found by that court. But the contents of the certificate consist mainly of the evidence as offered on the trial, and not, as contemplated by the...
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