¶1Under the provisions of section 736, Revised Statutes, where execution has issued against a corporation and been returned molla bona, then it is competent for the creditor to have execution- issued against any stockholder to the extent of the amount of such stockholder’s unpaid balance bn his stock. This section, however, contains the express proviso that no execution shall issue against a stockholder except upon an order of the court in which the suit shall have been instituted, made upon motion in open court, after sufficient notice, etc. It is thus readily apparent that the proceeding authorized by this section is not an <original but a siopplemental one ; merely auxiliary to a former.proceeding in the same court, which proceeding has resulted in a judgment in that court against the'corporation, followed by the issuance of a barren execution.
¶2The amended petition in this cause does not ask for judgment against the defendant as a stockholder, but only for an order for execution against him, and that on the .basis of the judgment already rendered against hia¿corporation in another court. This being the casé, it is 4juite obvious that the amended petition can only be *16treated as a motion for an order for an execution under the section mentioned. And since that petition is not filed in the court where the judgment was obtained it can but result that the plaintiff must fail by reason of not having followed the provisions of the statute in such, case made and provided.
¶3The circuit court was, therefore, correct in so holding and it was correct also when the plaintiff filed his motion to strike out certain portions of defendant’s' answer, in treating that motion as a demurrer, and in ruling that, as such, it reached back and questioned the sufficiency of plaintiff’s petition. This was the rule, at common law. 1 Chitty’s Plead. 668. A rule that still prevails even under the code, since it is not a technical one, but necessarily incident to every system and which may be successfully invoked whenever the court is advised by demurrer or motion of any substantial error or defect in a pleading, such an one as would render á verdict nugatory if founded upon it. Bliss on Code Plead., section417.
¶4For these reasons the judgment of the court of appeals affirming that of the circuit court is hereby affirmed.