Douglas v. Orth

[96]

THOMAS, J.

This is an action against three stockholders of a corporation to recover the proportionate amount of a judgment obtained against the corporation in which these defendants were stockholders, on their alleged liability as such.

Summarized, the facts upon which the present action is based are as follows: On November 13, 1912, the plaintiff was injured in a collision between a delivery wagon of the Berlin Dye Works & Laundry Company, a corporation, and an automobile in which he was riding. Plaintiff commenced an action on the 13th of December, 1912, against said corporation for damages arising out of the collision, and, after trial, recovered judgment for the sum of ten thousand dollars, from which judgment the corporation appealed. The judgment was affirmed on December 17, 1914. On August 14, 1916, three years and eight and one-half months after the collision, plaintiff commenced this action against the three stockholders as aforesaid. Demurrers were interposed to the complaint by defendants on the grognds: (1) That it did not allege a cause of action against them, and (2) that the alleged cause of action was barred by the provisions of sections 338 and 359 of the Code of Civil Procedure. The demurrers were sustained with leave to amend. Plaintiff refused to amend, and judgment was thereupon entered for defendants.

[1]

All parties to this action agree that the cause of action accrued, if any did accrue against the defendants, on the date of the collision, although more space is devoted to the argument and the citation of cases in support of this point than on any other proposition. But it is contended by appellant that the cause of action against these defendants is not barred, for the reason that the time which elapsed from the filing of the appeal to the affirmance of the judgment by the supreme court in the action aforesaid against the said corporation—from September 5, 1913, to January 16, 1915, both dates inclusive, a period of one year, four months and eleven days—should be deducted from the three-year limitation period. Appellant further contends that by excluding the said period only “two years and five months’ time for limitation between the time of the happening of the accident and the filing of the complaint herein” had elapsed, and hence the action would have been brought in time.