Wilkins v. Worthen

Riddick, J., (after stating the facts). The only-question we need consider is whether the action against Bowman is barred by laches and the statutes of limitation. At the time Wilkins & Bro. recovered judgment against the Memphis & Great Southwestern Railway Company, it owned no property excepting the amounts due from subscribers to its stock, had suspended operations of all kind, and ceased to be a going concern. The right of action against Bowman and other subscribers to the stock of said company accrued in favor of Wilkins & Bro. at least so soon as their execution was returned nulla bona, which was on the 27th of March, 1883. Marsh v. Burroughs, 1 Woods (U. S.), 468; Thompson v. Reno Savings Bank, 3 Am. St. Rep. 804, and note; 3 Thompson, Corporations, sec. 3371. This was not an action upon a judgment, for there was no judgment against the stockholders, but an action upon the written contract of subscription to take and pay for the stock, of said company. This action would be barred unless commenced within five years after it accrued against the stockholders of a company which had disbanded and permanently ceased operations. Curry v. Woodward, 53 Ala. 376; Payne v. Bullard, 23 Miss. 88; Thompson’s Liability of Stockholders, secs. 290, 291. The right of action accrued in 1883, and the summons was not issued against Worthen until 1892, and the action is barred unless the making out and serving the summons upon Bowman, in Kentucky, was a commencement of an action, within the meaning of our statute. The statute provides that “a civil action is commenced -by filing in the office of the proper court a complaint and causing a summons to be issued thereon.” Sand. & H. Dig., sec. 5657. But the mere signing and sealing a summons by the clerk is not sufficient. It must be delivered to the sheriff, or to some one for him, and with the intention and purpose of placing it in the hands of the sheriff to be served. McClarren v. Thurman, 8 Ark. 316-318; State Bank v. Cason, 10 id. 479; Hallum v. Dickinson, 47 id. 125. In this case the writ was not directed or delivered to the sheriff, nor was there any intention to deliver it to him. The object in filing the complaint was to obtain a personal judgment against Bowman, which required either an appearance on his part, or the service of a summons by an officer of this state; yet no summons was directed or delivered to an officer of the state. We are therefore of the opinion that an action was not commenced against Bowman, within the meaning of our statute. It is true that, when property is attached, a nonresident defendant may be constructively summoned by delivering him a copy of the summons with the complaint attached, but no personal judgment can be rendered on such summons. Sand. & H. Dig., sec. 5887. Ford v. Adams, 54 Ark. 137. No property was seized, or intended to be seized, in this case, and the constructive summons had nothing to rest upon, and was without effect. It was well known to plaintiffs that Bowman was a resident of Lexington, Kentucky; and, if they desired a personal judgment, the way was open by a suit in that, state. We conclude that the chancellor was. right in holding that, after a delay of nine years, the appellants-were barred by laches and the statute of limitations-The decree is affirmed.