Thompson v. Jewell

Marston, C. J. Several of the questions raised in this case were considered in Milroy v. Spurr Mountain etc. Co. ante, p. 231 decided at the present term. The remaining question must be answered in the negative. Can an action be maintained against the stockholders of a mining company, when not joined with the corporation, for a labor debt, under the act of 1877 ? The remedy given under the act of 1877 is purely statutory and must be followed. The language of the act that “ suit for such labor may be commenced against any or all the stockholders and the corporation jointly” is permissive and optional as to whether any, and if so, how many of the stockholders shall be included, but is imperative in that they must be joined with the corporation. The levy is not to be made upon the stockholder’s property until that of the corporation shall first be exhausted, and a direction to that effect is required to be indorsed upon the execution. This contemplates an execution against the corporation and stockholders jointly. In Milroy v. Spurr Mountain Co. we held that an action commenced and judgment recovered against the corporation alone would be a bar to any subsequent action against the stockholders. The same reasons would [241] prevent an action first against the stockholders' to be followed by one against the corporation; and certainly a judgment must be recovered against both, and an effort made to collect from the corporation, before the stockholder’s property can be resorted to. The judgment must be reversed with costs of both courts. The other Justices concurred.