Walterscheid v. Bowdish

• Decision Date: 11 April 1908
• Docket Number: 15,470
• Parties: CHARLES WALTERSCHEID et al. v. J. L. BOWDISH, as Receiver, etc
• Court: Kansas Supreme Court

96 P. 56

77 Kan. 665

CHARLES WALTERSCHEID et al. v. J. L. BOWDISH, as Receiver, etc

No. 15,470

Supreme Court of Kansas

April 11, 1908

Decided January, 1908.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

STATEMENT.

THIS action was brought by Bowdish, as receiver of the B. & C Pump Manufacturing Company, to recover funds to discharge a judgment theretofore obtained by a copartnership doing business under the name of Burnham, Hanna, Munger & Co. The full statement of the facts in the case is set forth in the following stipulation filed in the action at the trial:

"STIPULATION.

"It is hereby stipulated and agreed between the parties plaintiff and defendant in the above-entitled action that this cause upon the trial thereof shall be submitted to the court without the intervention of a jury, upon the following statement of facts, which statement, it is hereby agreed, is true and correct and contains all of the facts pertaining to the matters and things in controversy herein:

"(1) That on, to wit, the 23d day of October, A. D. 1900, in an action then and there pending in the district court of Kay county, Oklahoma Territory, wherein James K. Burnham, Thomas K. Hanna, Albert H. Munger, Fred C. Stoepel, Rice R. Miner Harry McWilliams and Henry L. Root, copartners as Burnham Hanna, Munger & Co., were plaintiffs, and Thomas J. Dixon was defendant, and the Wichita Plumbing and Pump Company, a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Kansas, was interpleader, the said plaintiff by the consideration of the said court recovered judgment against the said The Wichita Plumbing and Pump Company in the sum of two hundred thirty-eight and 75-100 dollars ($ 238.75), with interest and costs, in which said judgment the said The Wichita Plumbing and Pump Company was given ninety days in which to make and serve a case-made for the supreme court of Oklahoma Territory.

"(2) That the said The Wichita Plumbing and Pump Company did not prepare and serve said case-made, and said case was not thereafter taken to the supreme court of Oklahoma; that the action in which said judgment, hereinbefore mentioned, was rendered was commenced in the district court of Kay county, Oklahoma, on July 26, 1894, and had been pending in said court and in the supreme court of Oklahoma ever since said last above-mentioned date.

"(3) That on, to wit, the 3d of July, 1901, the said James K. Burnham, Thomas K. Hanna, Albert H. Munger, Fred C. Stoepel, Rice R. Miner, Harry McWilliams and Henry L. Root, copartners as Burnham, Hanna, Munger & Co., commenced their action in the district court of Sedgwick county, Kansas, upon said judgment last hereinbefore mentioned, against the B. & C. Pump Manufacturing Company, a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Kansas, said cause being No. 21,709.

"(4) That in the action so commenced as last hereinbefore stated it was alleged that the B. & C. Pump Manufacturing Company had succeeded to the business, property and rights of the said The Wichita Plumbing and Pump Company, and had assumed and agreed to pay all of the indebtedness of the said The Wichita Plumbing and Pump Company.

"(5) That in the said action last above mentioned the said The B. & C. Pump Manufacturing Company appeared by attorneys procured and employed by defendants, and contested said action.

"(6) That thereafter, and on, to wit, the 4th day of April, A. D. 1904, said action came on for hearing in the district court of Sedgwick county, Kansas, both parties being present by attorneys as aforesaid, and upon the said hearing and trial judgment was rendered in favor of Burnham, Hanna, Munger & Co. and against the said The B. & C. Pump Manufacturing Company in the sum of three hundred fourteen and 42-100 dollars ($ 314.42), and also twenty and 75-100 dollars ($ 20.75) costs, both with interest at the rate of six per cent. per annum, which said judgment is recorded in journal No. 45, at page 26, of the record of said court.

"(7) That in said judgment it was ordered that the defendant The B. & C. Pump Manufacturing Company be, and it was thereby and therein, given ninety days from the date therein in which to make and serve a case-made for the supreme court of the state of Kansas; that no case-made was ever made or served by the said The B. & C. Pump Manufacturing Company in said action, and that said cause was not by the said The B. & C. Pump Manufacturing Company or by any one else taken to the supreme court of the state of Kansas.

"(8) That thereafter, and on, to wit, the 2d day of July, A. D. 1904, the said Burnham, Hanna, Munger & Co. caused an execution to be duly and legally issued upon said judgment so rendered, as last hereinbefore mentioned, which said execution was thereafter, and on, to wit, the 11th day of August, 1904, by Henry Schad, the duly elected, qualified and acting sheriff of Sedgwick county, Kansas, duly and legally returned and filed in the office of the district clerk of Sedgwick county, Kansas, wholly unsatisfied for want of goods and chattels whereon to levy the same.

"(9) That thereafter, and on, to wit, the 19th day of September, 1904, the plaintiff in this case was by order of the district court of Sedgwick county, Kansas, then and therein duly and legally appointed receiver of and for the B. & C. Pump Manufacturing Company, under and by virtue of the provisions of section 1302, Compiled Laws of 1901; that plaintiff thereafter took his oath as such receiver, and filed his bond as required, and qualified as such receiver, and is now and ever since has been the appointed, qualified and acting receiver of the B. & C. Pump Manufacturing Company.

"(10) That on the 7th day of November, 1904, this plaintiff was, by the order of said district court of Sedgwick county, Kansas, ordered and directed to bring this action, under and by virtue of said section 1302 of the Compiled Laws of 1901.

"(11) That the said B. & C. Pump Manufacturing Company was, as hereinbefore stated, a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Kansas, with an authorized capital stock of one hundred thousand dollars, divided into four thousand shares of twenty-five dollars each.

"(12) That on, to wit, the 27th day of February, 1900, the defendant Charles Walterscheid was, and ever since has been, the legal and equitable owner and holder of 504 shares of the capital stock of the said The B. & C. Pump Manufacturing Company; that the defendant William Walterscheid was, on said 27th day of February, 1900, and ever since has been, the legal and equitable owner of 194 shares of the capital stock of the said The B. & C. Pump Manufacturing Company; and were at said time the owners of all the stock issued by said company.

"(13) That on, to wit, the 27th day of February, 1900, the defendants, being then and there the owners and holders of all of the capital stock of the said The B. & C. Pump Manufacturing Company, took by purchase from the said The B. & C. Pump Manufacturing Company all of its assets of any and every kind and description and assumed all of its liabilities, and that the said The B. & C. Pump Manufacturing Company thereupon suspended business and ceased to engage in the business for which it was organized, and has not since that date engaged in any business of any kind or character whatever."

On this stipulation judgment was rendered against the plaintiffs in error, jointly, for the full amount of the judgment in favor of Burnham, Hanna, Munger & Co., and this judgment is brought here for review.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS--Liability of Stockholders--Limitation of Actions. Where a corporation which has purchased the mercantile business and stock of an individual, and has assumed all the liabilities of the business, is impleaded with the individual in an action to recover an indebtedness growing out of the business, and while such action, which finally results in a judgment against the corporation, is pending the corporation resells to another corporation, which in turn assumes and agrees to pay all the liabilities of the former, held, that the statute of limitations does not begin to run in favor of stockholders of the latter corporation so long as the creditor is prosecuting, with reasonable diligence, actions to establish the liability of the successive purchasers.

2. CORPORATIONS--Repeal of Statut...