Frost v. St. Paul Banking & Investment Co.

Newton B. Frost, having recovered two judgments against the corporation defendant, instituted proceedings against it, under 1878 G. S. ch. 76, § 9, making these appellants and others stockholders of the corporation, codefendants, for the pur*330pose of enforcing their liability for unpaid subscriptions, and their statutory liability. Another creditor of the corporation came into the proceeding, and proved his claim. And such proceedings were had that the court entered a decree establishing the claims of Frost and of the other creditor; appointing a receiver; determining the liability of each of twelve stockholders, defendants, including appellants, on unpaid subscriptions and the amount thereof, and the statutory liability of each, and the maximum amount thereof; directing the receiver to convert the property, things in action, stock, and assets of the corporation, into money, and collect the amount for unpaid subscriptions determined to be due from each stockholder, and out of the proceeds of such sales and collections to pay the costs and disbursements in the action, the charges of executing the trust, and to pay said claims, and to make report to the court, stating the amount realized and so paid by him. And if, then, there shall remain a part of the claims unpaid, it directs that each" stockholder defendant pay upon his statutory liability such proportion of the deficit as his stock bears to the aggregate par value of all the stock of all the stockholder defendants; and it also provides for a reapportionment of the amount so to be paid, if the share of one or more of the stockholders cannot be collected, by reason of insolvency.

From this decree, two of the stockholder defendants took an appeal, directing their notice only to Frost and the clerk.

The respondent moved to dismiss the appeal on the ground thaji the appeal, as taken, does not give this court jurisdiction to review the judgment, because all the parties to, and interested in, it, are not before the court. That motion was denied on the ground that, though the appeal is taken from the judgment generally, not from any specified portion, we can consider on the appeal any question between the appellants and respondent in which parties not served with the notice of appeal are not interested adversely to the appellants.

The statute requires the notice of appeal to be served on the adverse party. This does not mean the party adverse in position in the title to the action or proceeding. Thus, if the appellant is a defendant, the plaintiff is not necessarily the adverse party in the question sought to be raised by the appeal. A defendant may be *331the adverse party, as to that question; and, for the purpose of presenting that question, he is the proper party respondent. In this case there is but one question, between the appellants and Frost, as to which no other party is interested adversely to appellants. The parties not served may be benefited, but cannot be prejudiced, by a decision in favor of appellants on that question. We can hear that question on the appeal, but no other.

That relates to the proof of Frost’s claims. His judgments against the corporation were rendered before this proceeding was begun. The question made in respect to them is, are they evidence of indebtedness of the corporation in a proceeding to enforce the liability of stockholders for unpaid subscriptions, and the statutory liability? We have no doubt they are. As against others than parties and their privies, a judgment (in personam, at any rate) is not evidence of the antecedent existence of the facts on which it is rendered. But it is, as against everybody, evidence of its rendition, and of the legal consequences resulting from its rendition. 1 Greenl. Ev. § 538. If it transfer the title of property from A. to B., it is, from and after its rendition, as fully evidence of the transfer as would be the most solemnly executed instrument between the parties. And so, if it be for the recovery of money, it is evidence of a debt, from and after "its rendition, as fully as could be any other transaction between the parties. When it is, as against any one but the parties, used as evidence of the debt, it is, of course, subject to be impeached for fraud or collusion.

In this case, it was sufficient that a debt from the corporation to Frost existed when the proceeding was begun. How long it existed before that is immaterial.

That one of the judgments was recovered against the corporation and others jointly makes it none the less a debt of the former. The remedy against stockholders, either for unpaid subscriptions or on the statutory liability, is not confined to separate debts of the corporation, or those for which it alone is liable.

Judgment affirmed.

(Opinion published 59 N. W. 308.)