Stockton Combined Harvester & Agricultural Works v. Houser

Belcher, C. This is an appeal by the plaintiff from an order of the superior court of Los Angeles county, denying its motion for a change of the place of trial of the action from that county to San Joaquin county. The motion was made upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change.

The plaintiff was a corporation, organized under the laws of this state, and having its principal place of business at the city of Stockton, in San Joaquin county. Its capital stock was $300,000, divided into 3,000 shares, of which about 2,800 had been actually subscribed for and taken. On October 4, 1892, the defendant was the owner and holder of 400 shares of the said capital stock, and at that time $50 on each share of the subscribed capital stock had been fully paid up.

The action was brought to recover an assessment of $25 per share, levied on October 4, 1892, on the stock held by defendant. The complaint averred that the plaintiff was indebted to divers persons, companies, and corporations in sums aggregating $150,000, and was unable to meet its liabilities and satisfy the claims of its creditors, and that to meet such liabilities an assessment in the sum of $25 per share on the subscribed capital stock was necessary; that the assessment was duly levied [379]as required by statute, and notice of the order, in the form prescribed, was published, and copies of the notice were sent through the mails addressed to each of plaintiff’s stockholders, including the defendant, at his place of residence; that the defendant had not paid the assessment on his stock or any part thereof, and that before the time fixed for the sale of the delinquent stock the board of directors of the plaintiff corporation, by resolution duly adopted, elected to waive further proceedings, under chapter 2, title 1, part 4, of the Civil Code, for the collection of delinquent assessments, and elected to proceed by action to recover the amount of said assessment due from defendant.

The only issues raised by the answer were as to the indebtedness of the plaintiff, its inability to meet its liabilities, the necessity of the levying the assessment, the adoption of the resolution levying the assessment, the publication by the secretary of the corporation of the notice of the assessment set out, the sending a copy of such notice through the mails to each of the said stockholders, and the adoption by the board of directors of plaintiff of the resolution electing to waive further proceedings, under the chapter of the Civil Code above referred to, for the collection of said alleged assessment, and ordering an action commenced to collect the same.