Grimwood v. Barry

BRITT, C. Mandamus. An action was brought by Grim-wood in tbe justices’ court of tbe city and county of San Francisco against Charles M. Plum, Emma D. Taylor, and others, stockholders in a certain corporation, to enforce tbe individual liability of the defendants therein, respectively, for alleged indebtedness of tbe corporation to said Grimwood. Five of tbe defendants in that action appeared and answered, putting in issue tbe allegations of tbe complaint there. Tbe defendant Taylor, being duly served with process, suffered default; thereupon, tbe plaintiff made proof of bis cause of action against her before Barry, tbe appellant here, who was tbe justice to whom [276] such action was assigned for trial, and judgment was entered against said Taylor for tbe amount of ber several liability as alleged in said complaint. Afterward tbe plaintiff moved said justice to try tbe action against tbe defendants wlio bad answered; tbe motion was denied on tbe ground tbat since a trial bad been bad and a judgment taken as to tbe defendant in default, the court bad no further jurisdiction of tbe case; tbat such trial and judgment operated as a dismissal in favor of tbe defendants who bad appeared. Grimwood then instituted the present proceeding in the superior court for a mandamus to compel tbe justice to proceed to tbe trial of tbe cause as demanded by tbe said motion which bad been denied; tbe court granted tbe writ, and hence this appeal. Tbe writ was properly awarded. Section 322 of tbe Civil Code provides, among other matters concerning tbe liability of stockholders, that “any creditor of tbe corporation may institute joint or several actions against any of its stockholders for tbe proportion of bis claim payable by each, and in such action tbe court must ascertain tbe proportion of tbe claim or debt for which each defendant is liable, and a several judgment must be rendered against each in conformity therewith.” It is obvious tbat under this statute there may possibly be as many diverse issues made, and as many trials bad, resulting in several judgments, as there are separate defendants; so tbat tbe disposition of tbe case as to one defendant can have no effect on tbe right and duty of tbe court to “ascertain”—such is tbe language of tbe statute—“'the proportion of the claim or debt for which each defendant is liable,” and to render judgment “in conformity therewith.” Appellant claims tbat certain code sections relating to trials in justices’ courts—Code Civ. Proc., secs. 850, 873, 892—sustain tbe view taken by him of bis duty in tbe case. We are, however, unable to deduce from them any rule at variance with the conclusion above stated. Whether, in an action founded on tbe joint liability of two or more defendants, tbe jurisdiction of a justice’s court to proceed further would be affected by tbe taking of judgment by default against some but not all of tbe persons sued—is a question not necessary for pres [277] ent consideration. The judgment appealed from should be affirmed. Belcher, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment appealed from is affirmed. Harrison, J, Yan Fleet, J., Garoutte, J.