Lamar Insurance v. Gulick

Mr. Justice Scott delivered the opinion of the Court: This case comes to this court on a writ of error to the Appellate Court for the First District, a majority of the judges of that court having certified the ease in-their opinion involves questions of law of such importance, on account of collateral interests, it should be passed upon by the Supreme Court. It is an action of assumpsit.on a stock note or bond, given by defendant to the Lamar Insurance Company, for ten shares of stock in that company. The suit is brought in the name of the insurance company, for the use of the receiver. In the declaration the note or bond is set out in hcee verba, and it is then averred, by way of recitals, that various installments, amounting to twenty per cent of the note, had been paid; that the corporation became insolvent, and in 1872 a receiver was appointed to take charge of its effects, by the Superior Court, on a bill filed by creditors to discover assets; that in 1878 the receiver had exhausted all assets-in paying debts, except stock subscriptions, and still $100,000 of debts remained unpaid, and that the receiver and complainants in the creditors’ suit presented to the court in which that suit was instituted, a petition for an assessment upon the unpaid stock subscriptions, for the purpose of paying the existing indebtedness of the company. It is then further averred such proceedings were had on such petition, the court determined the proper sum to be assessed was $40 per share of such stock, and the receiver was authorized and directed, either in his own name or in the name of the insurance company, to prosecute each stockholder in some appropriate action, for the recovery of the sum so assessed on each share of stock, if the same should not be paid on demand. To the declaration defendant pleaded the general issue, and on the trial the court to whom the cause had been submitted for trial, without the intervention of a jury, found the issues for defendant. That finding was warranted by the law and the evidence. It is admitted defendant was not in person made a defendant in the chancery case instituted by creditors to discover assets, and wherein a receiver was appointed to take charge of the affairs of the corporation, nor to the petition to the court praying for an assessment on the unpaid shares of stock to pay debts still owing by the corporation, except as ■ set forth in the decree. It appears the court in which the petition for an assessment was pending, by an order, fixed a day when the cause would be heard, and directed the receiver to give notice to all stockholders in the company, by a publication of a copy of such order in some newspaper of general circulation, once a week for four successive weeks, and also directed that a copy thereof be sent by mail, directed to each stockholder at his place of business or residence. That publication, it appears, was made, and a copy mailed to each stockholder. Whether any notice was in fact received by defendant, does not appear. It is certain he was not a party either to the original suit by the creditors, wherein the receiver was appointed, or to the proceeding to procure an assessment to be made upon the unpaid shares of stock to pay debts. Not having been made a party to either proceeding, defendant is not bound or concluded thereby. He is not affected by either decree. Excluding the order of the court making an assessment on the shares of stock as evidence against defendant, as must be done, no evidence remains of any assessment on shares of stock that is obligatory on defendant, or that he is bound to observe. A case exactly in point in principle is Chandler v. Brown, 77 Ill. 833, and as it is conclusive of this view of the law, it will not be necessary to discuss it as a new question in this court. The judgment of the Appellate Court will be affirmed. Judgment affirmed. Sheldon and Walker, JJ„, dissenting.