Fisk v. Stevenson

LESLIE, Chief Justice. J. McAllister Stevenson, judgment creditor of Record Publishing Company, a corporation, for $5,680.61, instituted this suit against G. Fisk to recover from him on unpaid stock subscription in said corporation. During pendency of suit G. Fisk died and Frances Fisk by amended petition was made sole defendant, she being the surviving wife of G. Fisk and entitled to the possession of the community estate. As against G. Fisk the suit (following return of execution nulla bona on said judgment against the sáid corporation) asserted stockholder’s liability for unpaid subscription under the terms of Art. 1345, Vernon’s Ann.Civ.St, providing: “the plaintiff in execution may proceed by action to charge the stockholders with the amount of his. judgment, in accordance with the liability of the stockholders.” The trial before the court without a jury resulted in a personal judgment against' Frances Fisk for the amount claimed in the outset against G. Fisk, and she appeals. Two points on the overruling of special exceptions are presented, and questions of res adjudicata and limitation are raised. The controlling point asserts that the judgment is wholly unsupported by the evidence. After a careful consideration of the record', we are unable to find any evidence of personal liability on the part of Frances Fisk. Certainly no such liability could be predicated on the bare fact that she is the widow of the deceased, and there is no evidence that she ever assumed the alleged obligation. The evidence pretty clearly indicates that G. Fisk failed to pay by ,a considerable amount for all the stock for which he subscribed, but there is no evidence that he left any property, community or separate, which came into the hands of Fran [433] ces Fisk and is properly applicable to his unpaid subscription. There is simply no evidence that he left any such property. The suit is not an effort to charge Frances Fisk for an amount based on any unpaid subscription by her for the stock, but to obtain a judgment against her on the obligation asserted against the husband in his lifetime. There is evidence that Frances Fisk subscribed for one $100 share in the alleged $20,000 corporation, but there is no evidence she did not pay for the share. The judgment not being supported by any evidence and the case having been fully developed, the judgment will be reversed and here rendered in favor of the defendant. It is so ordered.