Grady v. Graham

¶1(dissenting)—I am of the opinion that the order of the superior court in the receivership cause, directing suit against the stockholders upon their unpaid stock subscriptions, was conclusive upon the stockholders as' to the total amount fixed by that ■ order, in so far as any defense they may make in such suits is concerned. A stockholder paying his unpaid stock subscription under the circumstances here involved will, of course, be entitled to be heard- upon all questions touching his rights involved in the marshaling of assets and paying of claims in the receivership, as any other stockholder may be who has an interest in a possible surplus after payment .of debts. And if a stockholder is exempt from *445contributing towards the payment of some particular class of debts, like one of those claimed to be here involved, he will also be entitled to be heard and resist the application of the money paid by him to such debt, but not in the suit wherein it is sought to recover from him by the receiver upon unpaid subscriptions. That is a debt he owes to the corporation, just like every other creditor owes the corporation. As to just how it shall be applied .by the receiver in closing the affairs of the corporation, is a matter which it is wholly impractical to litigate in the suit against the stockholder. If every stockholder owing the corporation upon his unpaid subscription could litigate the question of the necessary amount for the receiver to collect, in a suit upon such subscription, then the question of the necessities of the receivership in that particular would be litigated just as many times as there might be number of suits against stockholders upon their unpaid subscriptions. For these reasons, I dissent from the views of the majority as to' thé finality of the order directing the suits against stockholders. • I concur in the granting of a new trial.