
    APPEAL — STOCKHOLDER’S LIABILITY.
    [Franklin (2nd) Circuit Court,
    June, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    F. M. Marriott v. Columbus, S. & H. Ry.
    Where Issues as to Certain Parties are not Determined Orders as to the Lia-bh,itt or Others are Interlocutory only and not Appealable.
    Where a suit has been brought to enforce the statutory liability of stockholders in a corporation and the trial court has left undetermined some of the issues as to certain parties, so that the pro rata liability of ail may not be finally determined with certainty, a reviewing court has no jurisdiction to entertain an appeal by certain of the parties on orders made as to them by the trial court. Such orders are interlocutory and not final.
    [For other eases in point, see 1 Cyc. Dig., “Appeals,” §§ 287-296; 5 Cyc. Dig., “Judgments and Decrees,” §§ 22-51. — Ed.] ,
    [Syllabus approved by the court.]
    Q. H. Stewart and F. C. Rector, ior plaintiff.
    W. O. Henderson and others, for defendant.
   DUSTIN, J.

Upon a discussion of the form of entry to be made herein (based upon a former opinion of the court) it was suggested for the first time that the issues as to certain parties herein (alleged stockholders) had not been determined by the common pleas court, but had been expressly reserved.

The attention of the court had not previously been called to that fact, either in brief or oral argument, by any of the numerous counsel engaged in the case; nor had it been observed by the court.

It presented at once an embarrassment to the final settlement of the ease, which the court suggested might possibly be remedied by a unanimous consent that such issues be considered and disposed of by this court, before final judgment upon the whole ease.

Unanimous consent could not be obtained to that plan; and the court, on reflection, is of the opinion, that even by unanimous agreement, such issues could not legally have been brought into this court, without a previous determination by the court below.

We are brought, therefore, face to face with the very serious question as to whether this court has any jurisdiction at all, in view of the failure of the lower court to determine whether certain parties were liable or not as stockholders.

Upon the theory that the' case is inseparable so far as determining the ratable liability is. concerned, we held that the appeal of one party brought up the whole ease.

Conversely, is it not true that the failure of the trial court to pass upon the liability of one party prevents an appeal by the remainder 1

There can be no final judgment rendered until all the issues as to liability are determined; because the determination of any one of them would either increase or diminish the pro rata liability of the remaining stockholders.

We are of the opinion, therefore, that the order of the common pleas court of July, 1905, was interlocutory -and not final. Dougherty v. Walters, 1 Ohio St. 201.

The Supreme Court, in the case of Mason v. Alexander, 44 Ohio St. 318, 335 [7 N. E. Rep. 435], makes a very proper distinction between cases where the debts of the corporation undoubtedly exceed the liability of all the stockholders, and cases where a partial assessment only is necessary. Spear, J., says:

“The position would be different if it were necessary to order contribution, an adjustment of equities, and an equalization of burdens among stockholders. But that necessity, we have found, does not exist here. The liability of no stockholder against whom a judgment was rendered could possibly be increased or diminished by the disposition of the issues to be determined later. The debts of the corporation, as found by both referees, and not disputed, far exceeded the capital stock; so that, in any possible event, every stockholder that could be holden at all was liable for an amount equal to his stock.”

In our former opinion we referred to the liability of the stockholders for the face value of their stock, but did not say that we would render judgment for that amount.

We preferred to consider further the. question of amount, especially as to the margin to be allowed to cover costs (including counsel fees) and the various contingencies liable to happen before final settlement.

tinder the findings of the master, there seems to be no necessity, even to cover contingencies, to render judgment for 100 per cent.

Therefore, the holding in Mason v. Alexander, supra, does not come to our relief.

The case being undisposed of, in vital respects, in the common pleas court, is not appealable and we have no jurisdiction.

The suggestion of certain counsel, that creditors will waive, so far as the remaining parties are concerned, the proportionate liability of those whose issues were undisposed of below, does not relieve the situation. The old proposition, that consent cannot give jurisdiction, interferes. The order, we must find, was interlocutory and not final.

The question as to fees of counsel, therefore, is not before us. ' Nor is it necessary to indicate our views as to the full' amount of the judgment to be rendered, to pay which an assessment of only 25 per cent of the stock seems to be at present required.

The appeals will be dismissed. •

Wilson and Sullivan, JJ., concur.  