Daggett v. Southwest Packing Co.

SHAW, J.

This is an action by a judgment creditor of the corporation defendant, against the corporation and a number of its stockholders, in the nature of a creditor’s bill

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to compel the payment and application upon the plaintiff’s judgment of so much of the amounts due from the stockholders to the corporation upon unpaid subscriptions to stock as may be necessary to satisfy the judgment and costs.

Demurrers of the defendants to the complaint were sustained, the plaintiff refused to amend, and judgment was then given dismissing the action. Prom this judgment plaintiff appeals.

The only point presented upon the argument is that the complaint does not aver that there has been any call or assessment upon the alleged unpaid subscriptions for stock, nor that there has been any request or demand upon the directors of the corporation to make such call or assessment. It is claimed by the respondents, and it is said that it was held by the court below, that such call or assessment or a demand therefore upon the directors and a refusal by them, is a necessary condition precedent to the right of a judgment creditor to maintain an action of this character and that the complaint is not sufficient unless it shows that this condition has been complied with.

We do not so understand the law. Where a solvent corporation finds it-necessary in the course of its business to call in an additional amount of its subscribed capital stock, and the subscription agreements do not state when, in what amounts, and upon what conditions, it is to be paid, the statute being the measure of the corporate rights in that regard, it is no doubt true that the statute must be followed and that a call is a necessary condition to the existence of a cause of action by the corporation to recover upon such subscriptions. But this rule has no application to a proceeding in equity by a judgment creditor to subject the unpaid subscriptions due to the corporation to the satisfaction of the judgment. The rule applicable to such cases is thus stated in a note to the case of

Thompson

v.

Reno Savings Bank,