Adams Pipe Works v. Okell Well MacHinery Corp.

NOURSE, P. J.

This is an appeal on the judgment-roll alone from a judgment following a trial by the court sitting without a jury. While the appeal was pending in the Second Appellate District appellant was granted permission on motion for diminution of the record to file the reporter’s transcript of the proceedings in the lower court. Such a transcript was filed, but it does not bear the certificate of the trial judge. As this transcript is not properly a part of the record on appeal we confine our decision to the certified transcript which contains the judgment-roll.

Here we find a simple action brought to enforce the liability of a stockholder under the provisions of section 3 of article XII of the Constitution prior to its repeal on November 4, 1930.

[610]

The appellant argues that since the constitutional section was repealed, before final judgment had been entered in this case the creditor’s remedy against the stockholder was abolished.

Coombes

v.

Franklin,

213 Cal. 164 [1 Pac. (2d) 992, 4 Pac. (2d) 157], is cited as authority. This case was reversed in

Coombes

v.

Getz,

285 U. S. 434 [52 Sup. Ct. 435, 76 L. Ed. 866], The point is not now open to controversy. The liability heretofore created under the constitutional section was contractual

(Dean

v.

Shingle,

198 Cal. 652, 662 [246 Pac. 1049, 46 A. L. R. 1156]) and the right of the creditor cannot be impaired by repeal of the section while an action is pending to enforce an antecedent obligation. (Ha

wthorne

v.

Calef,