Cleveland Rolling-Mill Co. v. Texas & St. L. Ry. Co.

Brewer, J., (orally.) In the cake of Cleveland Rolling-mill Company v. Texas & St. Louis Railway Company there is a demurrer to the bill. The bill is one to charge stockholders in the railroad company for and on behalf of a judgment creditor. Three grounds are alleged: First. That the bill is brought simply on behalf of a single complainant, instead of on behalf of all the creditors. That is a defect: a bill in equity must be in behalf of all entitled to share in such assets. Therefore that calls for a sustaining of the demurrer. Second. That the receiver is the party to bring suit. On the face of these papers, except by implication and reference to other proceedings, it does not appear that there was ever a receiver, and, if there [251] was, we do not think he is the only party who can bring suit for the collection of these unpaid subscriptions of stockholders. The third objection is that it does not appear that these stockholders were original subscribers to the stock of the company, and had not paid for their stock. The bill, I think, is open to criticism in that respect. I do not mean to say that the language does not carry the idea which counsel evidently had in mind, and yet I think it is perhaps not sufficiently perspicuous, and as the demurrer will have to be sustained, and leave given to amend the bill, the language should be made clear and fuller, to show that these parties took the stock directly from the company, and not from a contractor,, or that they took it with knowledge of the fact that this party, who is alleged to have been a sham contractor, was such, and that it was simply a device to evade the rule of liability for non-payment of stock. Of course, it is very patent what the idea of the counsel was in the matter; and, giving particular force to the words used, it may be that it is sufficient; but, as long as the hill must be amended in the other respect, it would be better to make it full, clear, and specific, so that there shall be no question as to what the facts are that are charged. The demurrer will be sustained, and leave given to file an amended bill by the next rule-day.