Wilkinson v. Grant

RICHARDS, J.

This is an action by the judgment creditor of a corporation to recover from the defendants, as stockholders therein, the amount "of the plaintiff’s judgment out of the unpaid subscriptions of said stockholders. Upon the trial of the cause the action was dismissed as to the defendants other than those who are the respondents herein, but as to these the court made its findings and conclusions of law, in the latter of which it found that the plaintiff was entitled to judgment against these defendants for the amounts which would be applicable out of their unpaid subscriptions, respectively, to the plaintiff’s judgment against the corporation. A judgment was entered in accordance with" such conclusions of law, whereupon the defendants separately moved the court, under section 663 of the Code of Civil Procedure, to vacate the judgment so entered and enter a judgment in favor of each of said defendants. The court granted each of these motions, and upon each proceeded to enter a judgment in favor of the moving party and against the plaintiff. While there were thus in form two judgments finally entered in the action, they were as to the plaintiff the same. The plaintiff has appealed from both these judgments.

There is no merit in the appellant’s first contention based upon the fact that there are two judgments in this case.

[1]

The complaint against each of these defendants was

[431]

several, as were also their defenses, which were separately and severally made. In such a case, under section 578 of the Code of Civil Procedure, several judgments may be entered.

(Shain

v.

Forbes,

82 Cal. 577, [23 Pac. 198].)

The next and main contention of the appellant is that the trial court was in error in granting the motions of the defendants to set aside the judgment at first entered in the plaintiff’s favor and in entering the judgment or judgments in favor of each of said defendants and against the plaintiff upon the findings in the case. The motions of the defendants to that effect were based upon the fact that there was no averment in the plaintiff’s complaint that either of said defendants was a stockholder in said corporation at the time the action was commenced, and upon the further fact that there was no finding that either of said defendants was such stockholder at the time of the commencement of the action. The record discloses this to be the fact as to both the complaint and the findings in the case. In the complaint it is alleged that on or about July 25, 1914, nearly three years before the commencement of this action, each of said defendants subscribed for and had issued to him the shares in the corporation upon which his liability in this action is sought to be predicated. It is also alleged that the cause of action upon which the plaintiff’s judgment against the said corporation was founded arose during the ownership by said defendants of their respective shares of stock in said corporation, but it is nowhere averred that said defendants continued to be the owners of their said stock or any portion thereof up to the date of the institution of the action. The findings of the court repealed these averments of the complaint, but embrace no finding of any ownership of the stock of the corporation in question at the time of the institution of the action.