McCarty v. More

LENNON, J.

This is an appeal from a judgment for the plaintiff. The original defendant herein, John F. More, has died during the pendency of the appeal, and John F. More, the administrator of the estate of the deceased, has been substituted in his place.

On May 13, 1915, plaintiff, as assignee of various creditors of the Black Hawk Mining Company of New Mexico, recovered judgment against the corporation in the sum of $2,115.59. In the same action judgment was recovered against the deceased in the sum of $374.45, this sum apparently having been considered as the amount of the statutory liability of the deceased as a stockholder in the corporation. An order was made vacating the judgment against More, and, after a trial of the action, judgment was entered in his favor. In the meantime, execution had been issued against the corporation and had been returned unsatisfied. Plaintiff thereupon instituted the

[740]

present action against More wherein he sought to recover on the theory that the unpaid portion of More’s subscription to the capital stock of the corporation was an asset which could be reached by him to satisfy the debt evidenced by the judgment against the corporation.

[1]

We cannot say that the judgment in favor of More in the action instituted by the plaintiff against the corporation and More is a bar to the present action. So far as appears' from the record herein, that judgment may have been based solely upon plaintiff’s failure to establish More’s

statutory

liability, and may, therefore, have been determined altogether upon issues wholly irrelevant and immaterial in the present proceeding. In such case the doctrine of

res judicata

would obviously have no application.

[2]

It is claimed that, by reason of plaintiff’s failure to plead or prove the laws of the state of Nevada pursuant to which the corporation was formed, the finding of the due incorporation of the Black Hawk Mining Company of New Mexico is unsupported by the evidence,- and that there was no foundation for the admission in evidence of the articles of incorporation of said company. It appears from the record, however, that a copy of the laws of Nevada was submitted to the trial judge following the submission of the case, it being stipulated that the document submitted contained a full and correct copy of the laws of the state of Nevada, relative to. the facts necessary to be, set forth in the articles of incorporation of corporations organized under the laws of said state. The fair intendment of this stipulation was, we think, that the said copy of the laws of the state of Nevada should be considered as in evidence in the case.