James W. Andrews & Co. v. Gwinnett Manufacturing Co.

Trippe, Judge. It is true, that by the charter of the Gwinnett Manufacturing Company, the judgment obtained on a debt due by the corporation is first to be levied on the corporate property. But it is specially provided that the stockholders may be made parties to the suit, at least that the president of the company shall, upon notice, file, at the first term, a schedule showing the names of all the stockholders and the amount of stock held by each. When judgment is obtained it is the duty of the clerk to indorse on the execution a copy of said schedule, which is the guide to the levying officer in the collection of the same. The effect of this is to make the stockholders primarily liable to be sued, liable to have judgment rendered against them in proportion to their stock, although the corporate property is first to be levied on. If the particular mode allowed by the charter is the only one by which a creditor can reach the stockholder, then, as in this case, if the president is unable to furnish the schedule, all remedy is gone. The charter expressly declares the stockholders to be “bound and liable for the payment of all the debts of the company in proportion to the amount of stock owned by each at the time the debt was contracted.” It is a declaration of joint liability, to-wit: of the. corporation and of the stockholders, and one method is given whereby it can be enforced. If that remedy is impracticable on account of the inability of the chief officer of the company, the right of the creditor still exists, and if a right then there must be a remedy. Indeed, if a liability exists on the part of the stockholders jointly with the corporation, and the levying of the execution on the property of the stockholders, is merely postponed until the corporate property is first taken, a right of action against both jointly exists in the creditor, and if the charter gives him some additional mode whereby he may enforce his right, it is a cumulative and not exclusive remedy, unless so declared, or is to be so construed by necessary implication : 42 Georgia, 435; 1 Kelly, 524; Code, section 3376. [641] It is not the placing of the names on the schedule to be returned by the president, nor on the execution by the clerk, that makes the stockholders liable. They were liable before, by the charter, and that was only a means of ascertaining who they are, and the amount or proportion of their liability. The plaintiff proposes to do this himself, to furnish the names of the stockholders and the amount of their stock, and to make them parties directly to the suit. There is no reason why he should not be allowed to do this if he choose to take the burden, and especially is it his right, if it be his only means of enforcing his claim. Of course, when a plaintiff elects or is forced so to proceed, he must set forth whatever is necessary to show the proportion of each stockholder’s liability who is made a party. Amendments for that purpose, when necessary and proper, can be made. When the proceedings are thus adopted by the creditor, the right of the stockholders to require the judgment to be first enforced against the corporate property remains unaffected. Judgment reversed.