,SAV. BANRv. FlpE;LITY INSpR.A.NOE, TROST & SUmDEPO.SI'l' CO. '
r ". .
D. Pennsylvania,'January '28,l8OO.)
TJ;I,e statut!,! sults.by of corporation against stockhOlders whenj the'corporatlon 'bils s'uspende<i business fora yeatcon'tetnplates an absolute aballdonmentof theeorporate' business, a sUspension of only a Part thereof being insufficient. .
Company,a Penll13Y,lvania C9rp,OI',ati0n, d. b. n. C, a. of the estate. deceased. Reading was a Fit()ckhqlder in. the Davidson Qompatiy, or· ganizedund,er the the,stiit was brojIght to enforce liability of ll\s estate unde*,u'w',t(ansas, ''fhe,re was a verdict defendant, ,pufthe cohr granted an:ew tri,al., 87 Fed. liS., . Tpe pre!;lent for th.(verdict, and fQr a newfrial. J)ischarged. . . Russell Duane, for plaintiff. . , Richard O.Dale, for defendant.
the statute of limitations, were passed upon by Jridge'Dallas on a former trial of the -case [87 Fed. liS], I need consider only the one excepted. This question involves matter of faet, which the parties have submitted to the court, as wel1'as,of law. \ 'A statute of Kansas authorizes "suits by' creditors of corporations of that state, against stockholders therein, under two distinct sets of circumstances-the one whenoorporations have suspended busi· ness for a year, and the other where executions against corporations have been returned unsatisfied; and the statutes of limitation of that state provide that "an action upon a'liability created by statute other than a forfeiture or penalty" mnstbe brought within three years of the time when the right of action accrues. [2 Gen. St. Kan. 1897, c.' 95, § 12, subd.2.] A. statute of Pennsylvania, dated June 26, 1895, provides that "when a cause of aqtion.has been fully barred by the laws of the state or county in which it arose suchbal' shall be a com· plete defence to an action thereon brought in any of the courts of this commonwealth." [Laws Pa. 1895, p. 375.] The defendant alleges that the limitation of the cause of action here sued upon commenced to run prior to July, 1892, when, as the defendant asserts, the Davidson Investment Company' suspended business-notwithstanding the fact that the suit is founded, not on such suspension, but on the return of an unsatisfied execution. The question of fact thus raised must first be determined. Did the company suspend business, as contemplated by the statute at the time mentioned? The only testimony on this subject is that of Mr. Fitch, a former secretary of the company.
by the points reserved, but as all of theD;l; except the one relating to
BUTLER, ; District Judge; Many' interesting·· questions are raised
BABE V. CONSOLIDATED IOE CO.
The most that can safely be predicated upon this testimony is that the company temporarily suspeuded a part of its cU!5tomary business prior to July, 1892, continuing other branches theretofore conducted, until a receiver was appointed, a year later, occupying and keeping open its place of business with no outward appearance of change, employing and paying its usual officers as theretofore. I do not believe that this was such a suspension of business as the statute contemplates. Such a situation does not seem to be within either the terms or the spirit of the statute, which I think contemplates an abso· lute abandonment of the corporate business; a situation that might be seen and understood by creditors, and therefore justly be regarded as notice to them. The case of Sterne v. Atherton [Kan. App.] 51 Pac. 791, cited by the defendant, is readily distinguished from the case before me. There the corporate business had been fullyaban· doned, and the only question was about the applicability of the statute to such a state of facts. In answer to the argument that it was un· reasonable to hold the creditors to notice of the abandonment, the court pointed out that the circumstances brought the case within the terms of the statute, and that the argument was, therefore, one which the legislature alone could regard. This was true; the situation was unequivocal, and open to the observation of creditors, who thus had such notice as it afforded. To treat this statute as applicable to the case before me, where the business was continued as before described, and appearances were unchanged, would seem tote unreasonable and unjust. This view of the question of fact submitted, renders an examination of the several legal questions raised unnecessary. respects the rule entered for a new trial-on the ground of after discovered evidence-it is sufficient to say that I am not satisfied that this evidence could not as readily have been discovered before as after the trial; and furthermore that I do not believe the facts invoked constitute a bar to the suit. . The rules for judgment notwithstanding the verdict and for a new trial, are both discharged.
RABE v. OONSOLIDATED ICE CO. (Circuit Court, N. }); New York. February 2, 1899.)
MASTER AND BERVANT- N EGLIGENCE-PLEADING.
'A complaint Which, by fair iptendment, alleges that plaintiff, while in the employ of defendant, received injuries through the failure of defendant to guard a dangerous set screw, caught and maJlgled plaintiff's arm while he was in the discharge of his duties, in Ignorance of the existence of the screw, Is sufficient on demurrer.
John S. Wolfe, for plaintiff. William H. Rand, Jr., for d.efendant.
OOXE. District Judge. This is an action to recover damages for an injury alleged to have been received by the plaintiff through the negligence of the defendant. The defendant demurs on the ground that the complaint does not state a cause of aCtion. The