Hambleton v. Glenn

Alvey, C. J., delivered the opinion of the Court. This case is substantially the same in fact and principle as the preceding case of Hambleton & Co. vs. Glenn, Trustee, ante p. 331, with the difference only that this is a case for the recovery of an additional assessment of 50 per cent, of the par value of the same shares of stock in respect of which the defendants were sued in the preceding case to recover the assessment of 30 per cent, of such shares. The supplemental order or decree of the Virginia Court, under which this last assessment was made, is dated the 26th of March, 1886, and is in substance set forth in the declaration in this case. The pleadings here are somwhat different from those of the preceding case, and the legal questions thereon were presented in a varied form; but the issues of fact were the same, and their trial resulted in the same conclusion and judgment as'in the former case.

We refer to our opinion in that case as decisive of the principal questions in this. In the preceding case there were five pleas, the third and fourth of which were demurred to by the plaintiff. In this case there were seven pleas; to the third, fourth and fifth of which demurrers were entered by the plaintiff, and which demurrers were sustained by the Court; and to the sixth plea there were two special replications ³⁵³ by the plaintiff, to both of wbicli the defendants demurred, and which demurrers were overruled. The third plea in this case sets up as a defence, that prior to the passage of the decree of the 26th of March, 1886, making the call of 50 per cent, of the par value of the stock, the plaintiff, with the consent of the creditors of the company, and without the permission of the defendants,.released a large number of the stockholders of the company, from all liability to the plaintiff and to the creditors, for the payment of any further sum on their stock; and that none of such stockholders or shares released were charged with or paid any part of the assessment of the $50 per share sued for in this action, or contributed towards payment of the company’s debts anything over or beyond the $30 per share and interest, called for by the decree of December 14th, 1880, mentioned in the declaration: That by reason of such release of said shares and shareholders the decree of March 26th, 1886, does not operate upon or affect said stockholders and shares of stock released prior to the passage of said decree; and does not make a call or assessment bearing equally and impartially upon all the stockholders and shares of stock alike; and that by reason of the facts and release aforesaid, the call or assessment sued for in this action is unequal, unjust and illegal.

The fifth plea is substantially the same as the third, only alleging the facts in a more general form, and that the release of other stockholders was by the plaintiff alone, without the further allegation that such release was with the consent of the creditors of the company and without the consent of the defendants. After what has been decided in the preceding case between these parties, it would seem to be quite unnecessary to restate the reasons for holding that there was no error in sustaining the demurrers to these pleas. It is not in terms alleged in these pleas that all the shares ³⁵⁴ of stock of the company were not,, by the decree of the 26th of March, 1886, treated as contributory, for the purpose of ascertaining the amount to be assessed; but simply that the call made was not general and equal. If the release of stockholders by the plaintiff was without warrant of law and void, either as against creditors or other stockholders, such release will not avail as a discharge of the stockholder, and the defendants cannot be affected thereby.

But clearly this Court has no power to review and reverse the decree of the 26th of March, 1886, any .more than it had to review and reverse the decree of December 14th, 1880. It may even be conceded that there was error in the passage of the decree, but that error cannot be corrected by this Court in a collateral proceeding. The appropriate remedy for the correction of the error, if such it be, should have been sought in the jurisdiction where the decree was rendered. Hawkins vs. Glenn, 131 U. S., 332 .

The fourth and sixth pleas are pleaded by way of equitable defences, and are, in all substantial particulars, the same as the third and fourth pleas in the preceding case. As before stated, the fourth plea was demurred to and the demurrer was sustained; and for the reasons we have stated for sustaining the demurrer to the third plea in the preceding case, we sustain the demurrer to the fourth plea in this case. But, as already shown, instead of demurring to the sixth plea, (which alleges that the decree of December 14th, 1880, was procured by fraud and collusion,) as was done to the fourth or corresponding plea in the preceding case, the plaintiff interposed two special replications thereto. The first of these replications sets forth the fact of the pendency of the Virginia Chancery suit, in which the decrees of December 14, 1880, and of the 26th of March, 1886, were passed, and sets forth at large, as part of the replication, the record of such Chancery pro ³⁵⁵ ceedings, and avers that the defendants were and are parties to such proceedings by Representation, and that they can only insist upon the defence stated and set forth in the sixth plea, in that cause, and not as a defence in the present action.

The second replication to the sixth plea brings upon the record and sets out a proceeding, instituted by the defendants, and others, by petition, in the cause in which the decrees of December 14th, 1880, and the 26th of March, 1886, were passed, asking to have those decrees reviewed and reversed, for various causes assigned in the petition, and praying to have enjoined the prosecution of this and the preceding action, both of which were then pending in the Court of Common Pleas of Baltimore City: That said petition was filed on the 3rd day of November, 1887, and in the proceedings thereon the defendants and others had full opportunity to allege and avail themselves of any and all grounds, if any existed, for setting aside and annulling said decrees of December, 14th, 1880, and of March 26th, 1886, and for such