Russell v. Pacific Railway Co.

Temple, J. The plaintiff brings this action as a judgment creditor of. the Pacific Railway Company, in his own behalf and for other creditors of the corporate defendant and of the Los Angeles Cable Railway Com- , pany, for the appointment of a receiver, for the sale of its property, and that the sum due from stockholders of the Pacific Railway Company on their stock, so far as necessary, may be called in. Numerous stockholders resident in California are made defendants.

A complaint in intervention was filed in behalf of numerous persons who claim to be creditors of the Pacific Railway Company in various amounts. These creditors have no joint or common interest whatever, but claim the right to thus join under the provisions of a statute of the state of Illinois, which was proven at the trial.

February 10, 1891, Charles H. Morse, in the superior [260]court of Cook county, Illinois, recovered a judgment against the Pacific Railway Company for a sum of money, and caused an execution to be issued on said judgment, which was afterward returned nulla bona. Afterward, upon the averment of the insolvency of the corporation, Morse caused a receiver to be appointed for said corporation by the Illinois court.

On the twentieth day of January, 1891, plaintiff recovered a judgment in the superior court of. Los Angeles county against the Pacific Railway Company for the sum of one thousand and fifty-eight dollars and forty-eight cents, and thereafter commenced this action, and has procured a receiver to be appointed to impound the assets of the Pacific Railway Company.

It is averred and practically found that the corporation is utterly insolvent.

Judgment was entered for the defendants, and the intervenors, having made a fruitless application for a new trial, now appeal both from the order refusing a new trial and from the judgment.

One reason urged by the respondents why the appeal should not be sustained is, that, as they contend, an action of this character cannot be maintained in this state, That is to say, it is a special remedy given by the statute of Illinois, and can be enforced nowhere else.

The law of the state of Illinois, as found by the court, is as follows: By the eighth section of the act under which the Pacific Railway was incorporated, it was provided that "each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him, to be collected in the manner herein provided. No assignor of stocks shall be released from any such indebtedness by reason of any assignment of his stock, but shall remain liable therefor jointly with the assignee until the said stock be fully paid. Whenever any action is brought to recover against the corporation, it shall be competent to proceed against any one or more stockholders at the same time, to the extent of the balance