Opinion
4 Div. 784.
June 27, 1918. Rehearing Denied November 14, 1918.
Appeal from Circuit Court, Covington County; A. B. Foster, Judge.
Chapman Lewis, of Dothan, and J. D. Bailey, of Florala, for appellant.
Powell, Albritton Albritton, of Andalusia, for appellee.
In August, 1913, on a bill by the appellees to foreclose a mortgage executed by the Lake Jackson Hotel Company, a corporation, a deficiency money decree was rendered against the corporation. An execution thereon was issued against the corporation, and on December 1, 1913, was returned "no property found." On November 9, 1915, in an effort to enforce the satisfaction of the decree, writs of garnishment were issued against the appellants G. F. Petery, H. A. Hughes, J. T. Manning, J. A. McNeill, W. R. McDuffie, A. L. Wynn, E. L. Adams, and D. I. B. Adkison, among others not important to name. The claim against these appellants was that they were due varying sums as balances on their respective subscriptions to the capital stock of the Lake Jackson Hotel Company. The court ascertained these respective balances, and adjudged the liability of the respective appellants to pay the several sums so found due as for unpaid subscriptions to the capital stock respectively made by them. Leave to sever in the assignments of error was granted the appellants. In the brief for the appellees, it is insisted that a single appeal — ergo a single transcript — cannot properly be employed to bring up for review the several, distinct matters of complaint the appellants now present, citing in support of this contention Mobile Imp. Co. v. Stein, 158 Ala. 114, 48 So. 368, 17 Ann. Cas. 288; Scranton v. Ballard, 64 Ala. 402; and Fulton v. State, 170 Ala. 70, 54 So. 165. Since, on the merits, the conclusion of this court, to be later stated, is that no error is disclosed in respect of any one of the lower court's respective adjudications of liability, this court passes over the appellees' point; it not being necessary to decide it.
The separate pleas filed by the respondents (appellants) set up the bar of the statute of limitations of six years against their several liabilities for the unpaid balances on their several subscriptions to the capital stock of the Lake Jackson Hotel Company. The court below denied the bar thus relied on by the several respondents. The argument and insistence in the court below was, and on appeal is, that the asserted six-year period operating a bar began to run when, on January 22, 1908, the directors of the corporation, through resolution formally adopted, made a call upon all the stockholders for the balance of unpaid subscriptions, viz. 50 per centum; and that, since more than six years elapsed between the date of the call and the issuance of the writs of garnishment in 1915, the bar was complete when the writs were sought or issued. On the question thus presented, the court below read Vaughn v. Ala. Nat. Bank, 143 Ala. 572, 42 So. 64, 5 Ann. Cas. 665 and Montgomery v. Roman, 147 Ala. 434, 41 So. 811, as requiring the conclusion that the respective claims against these respondents (appellants) for unpaid balances on subscriptions were not barred. The former was decided at the November term, 1904; and the latter on June 30, 1906.
By the amendatory act (of Code 1886, § 2972) approved February 18, 1895 (Gen. Acts 1894-95, p. 881), it was provided:
"A judgment creditor of a corporation, having an execution returned no property found, may by garnishment subject the unpaid subscription of any stockholder in such corporation to the payment of his debts, without giving bond or security, and without regard to whether the corporation can maintain suit against such stockholder for such unpaid subscription, or not, or such creditor may proceed in equity against any one or more of such stockholders, and subject such unpaid subscription without joining the other subscribers, or stockholders, and without regard to whether the corporation has called for such unpaid subscriptions and could maintain suit therefor, or not. Provided, however, that the provisions of this act shall not apply to suits now pending."
In Enslen v. Nathan, 136 Ala. 412, 34 So. 929, reference was made to the state of the law, statutory and decisional, preceding the adoption of the above-quoted amendatory act. It is unnecessary to repeat it. The provisions of the amendatory act have passed into Code 1907, §§ 3744 and 4311. These sections authorize either garnishment or bill in equity to effect the enforcement of the payment of unpaid balances on subscriptions to capital stock in corporations. After noting the creation of these alternative remedies this court, in Montgomery v. Roman, 147 Ala. 440, 41 So. 813, said:
"In this case the judgment creditor first proceeded by garnishment. Since the enactment of our statute permitting the process by garnishment against a stockholder, without regard to whether a suit could be maintained by the corporation, the issue is the same, whether the proceeding be by garnishment or in equity, to wit, 'whether the garnishee is indebted to the debtor in such form as that the debt can be condemned to the satisfaction of the plaintiff's judgment.' "
This conclusion of the court — announced approximately 12 years ago — consists with the sound view that there is no material difference between these remedies; their purposes and the results to attend upon their appropriate application. There is no reason why the inception of a period of limitation should be at one point of time under one of these alternative remedies and another where the other remedy is resorted to. In both the Vaughn and Roman Cases (cited supra) it was decided that the period of limitation did not begin to run against a creditor pursuing one of the remedies provided in the act approved February 18, 1895 (bill in equity), cited ante, until the execution, issued on the judgment against the corporation, was returned nulla bona. This repeated interpretation of the effect of the statute in the Code of 1896 was extant when the Code of 1907 readopted without material change the statutes that were the codification of the provisions of the act approved February 18, 1895. Decisions of this court delivered before the cited act of 1895 was enacted, or that administered the law prior to that enactment, are not to be accounted authority under the changed (by the Act of 1895) statutory status. In Harris v. Gateway Land Co., 128 Ala. 652, 29 So. 611, the court quoted a part of the act of 1895, citing the act. This decision was cited on the brief in the Vaughn Case, but it was not referred to in the opinion in the Vaughn Case. It is manifest that the court, in the Harris Case, took no proper account of the effect of the statute considered in the Vaughn and Roman Cases, supra. The court below correctly held, as a matter of law, that the respective claims against these several respondents (appellants) were not barred by the statute of limitation of six years.
The court, in its opinion, also sets down a conclusion of fact, that cannot be gainsaid on the record here, that leads to the same result, viz. that, in fact, there was no efficient call made in 1908 for the payment of the unpaid balance on subscriptions for the stock. This being true, even apart from the authority of the Vaughn and Roman Cases, it is plain that no bar had become effective to protect these stockholders from liability for unpaid subscriptions.
Since the evidence, heard by the court under the practice established by the act of 1915 (Gen. Acts 1915, p. 705), failed, as the court below concluded, to show the presence of all of the conditions requisite to exonerate an original subscriber for capital stock from his obligation to discharge an unpaid balance on his subscription (Henderson v. Mayfield Woolen Mills, 153 Ala. 625, 45 So. 211), the court cannot be held to have erred in its decree adjudging respondents McNeill and Wynn liable for their respective balances.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.