Topeka Mfg. Co. v. Hale

• Decision Date: 10 March 1888
• Citation: 39 Kan. 23,17 P. 601
• Parties: THE TOPEKA MANUFACTURING COMPANY v. GEORGE D. HALE, as Assignee of the Capital Iron Works
• Court: Kansas Supreme Court

17 P. 601

39 Kan. 23

THE TOPEKA MANUFACTURING COMPANY v. GEORGE D. HALE, as Assignee of the Capital Iron Works

Supreme Court of Kansas

March 10, 1888

Error from Shawnee District Court.

ACTION brought by George D. Hale, as assignee of the Capital Iron Works, against The Topeka Manufacturing Company, to recover the sum of $ 6,464.58, alleged to be due the plaintiff upon notes given by said defendant and over-due, and also on a book account of merchandise furnished said defendant. Upon this claim judgment was rendered against the defendant on the 8th day of September, 1885, in the district court of Shawnee county, for the full amount thereof, to wit, $ 6,800. On the 12th day of September, 1885, an execution was issued in due form on said judgment, on which the sheriff made return that no property could be found whereon to levy the execution. Afterward a motion was filed for an execution to issue against R. M. Mills, as a stockholder of said corporation under the provisions of § 32, art. 4, ch. 23, Comp. Laws of 1885, which motion was heard on the 11th day of January 1886, and was by the court sustained. The court made special findings of fact, as follows:

"1. For the plaintiff generally, and against R. M. Mills.

"2. That plaintiff did, on the 8th day of September, 1885 recover in this court a judgment against defendant, the Topeka Manufacturing Company, a corporation organized and existing under the laws of the state of Kansas, for the sum of $ 6,800, and the sum of $ 8.50 as costs, and which judgment is wholly unpaid; that on the 8th day of September 1885, an execution was issued against the property and effects of defendant, directed to the sheriff of the county of Shawnee in the state of Kansas, upon said judgment, and that said execution was on the 8th day of September, 1885, returned by the sheriff wholly unsatisfied, and stating and certifying that there could not be found any property real or personal whereon to levy said execution.

"3. That said R. M. Mills is and has ever been since the 1st day of July, 1883, a stockholder of the defendant, the Topeka Manufacturing Company, and owned and now owns ten shares of its capital stock, of the par value of one hundred dollars per share, and aggregating the sum of one thousand dollars, upon which he has paid the sum of one hundred and fifty dollars, leaving unpaid thereon the amount of eight hundred and fifty dollars.

"4. That the defendant, the Topeka Manufacturing Company, is a corporation organized and existing under the laws of the state of Kansas, and is neither a railway, religious nor a charitable corporation.

"5. That the defendant, the Topeka Manufacturing Company, at the time said judgment was rendered was, and ever since has been, insolvent."

Upon said findings an execution was ordered to be issued against R. M. Mills for the sum of $ 1,850, the balance due on the stock, and for the face value thereof. To reverse the order made as aforesaid, Mills brings the case here.

Judgment affirmed.

J. S. Ensminger, for plaintiff in error.

John T. Morton, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.

The correctness of the judgment of the court below depends upon the question whether or not Mills was a stockholder of the Topeka Manufacturing Company at the time of the contracting of the debts and the rendition of this judgment. If he was then this judgment is correct. It is claimed by the plaintiff in error, (and the evidence on his part tends to establish that fact,) that some time after the organization of the Topeka Manufacturing Company, trouble arose between some of its officers and its president, and that plaintiff was induced to become a stockholder in the company for the purpose of being elected president of the company, and that for such purpose he subscribed for ten shares, of the value each of $ 100 of the capital stock, which subscription upon its face shows such subscription to have been unconditional;...