Union Lithograph Co. v. Bacon

MELVIN, J.

These appeals are from a judgment of September 13, 1915, and from certain orders which will be more fully described in the course of this opinion.

The action was commenced in 1914 by the “Union Lithograph Company on Behalf of all Creditors of the Salinas Portland Cement Company

v.

W. R. Bacon” and other named defendants. The stated purpose of the action was “to create a fund by collecting stock subscriptions, to pay debts of Salinas Portland Cement Company.” The complaint set forth the insolvency and forfeiture of its charter by the cement

company;

the indebtedness of that corporation (evidenced by a judgment recovered subsequent to said forfeiture) to the Union Lithograph Company in the sum of $1,273.10; the fact that the cement company owed obligations to other creditors not specified, amounting, with the named judgment, to ten thousand dollars; the status of the several individual defendants as stockholders in certain specified amounts of stock holdings; and the fact that the subscription price of their stock was unpaid. The prayer was for a judgment requiring the stockholders to pay a receiver, to be appointed by the court, the sum of ten thousand dollars, to be distributed by him proportionately to the creditors of the cement company, together with the payment of one thousand dollars as attorney’s fee, and costs of suit.

Defaults of the individual defendants were entered and plaintiff, Union Lithograph Company, had judgment for $1,375 in its own favor and in favor of certain other specified creditors of the cement company in sums which, with the

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amount above set forth, amounted to" ten thousand dollars. The judgment was also for costs ($13.75) and for attorney’s fee ($250). Respondents herein promptly moved to vacate and set aside this judgment upon numerous grounds, and after a hearing following due notice the motion was granted on September 13, 1915, and on the same day judgment was entered for $1,375 to be apportioned among the defendants sued as stockholders in accordance with their holdings of the capital stock of the defunct corporation. An attorney’s fee of $250 was included in the judgment, and the conrt found the amount due from each of the defendants as stockholders to make up the sum necessary to pay the judgment and attorney’s fee. The judgments against these respondents, Bacon, Center, and Cox, were respectively $10.56, $375.40, and $26.40. No provision was made for costs except those which might become due if execution should issue. Appeals have been taken from the order and from the judgment of September 13, 1915, in so far as the latter sets aside the former judgment. The judgment of September 13, 1915, was entered, and immediately thereafter each of the respondents Cox, Bacon, and Center paid to the county clerk the amount found to be due thereunder from him. On the day following such payment plaintiff received these amounts from the county clerk, but did not satisfy the judgment as to these respondents. After demanding and being refused such satisfaction upon proper notice these respondents, on October 1, 1915, acting under the provisions of section 675 of the Code of Civil Procedure, moved the court for an order or judgment entering satisfaction as to them of the judgment of September 13, 1915. After a hearing the court made such an order and from it plaintiff has appealed.