
    FINAL ORDER IN AN ACTION TO ASSESS STOCKHOLDERS’ LIABILITY.
    [Circuit Court of Franklin County.]
    F. M. Marriott (consolidated) v. The C., S. & H. R. R. Co.
    Decided, June, 1906.
    
      Appeal—Action to Enforce Stockholders’ Liability—Determination as to Some of the Stockholders—Not a Final Order—Jurisdiction by Consent.
    
    An order made in the common pleas court in an action to enforce stockholders’ liability, which determines the liability of some but not of all the defendant stockholders, is interlocutory and not appealable.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
    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, or 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 case, 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 case.
    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! of 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 determinating the ratable liability is concerned, we held that the appeal of one party brought up the whole case.
    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 ?
    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 dimmish 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. Bank v. Walters, 1 O. S., 201.
    The Supreme Court, in the case of Mason v. Alexander, 44 0. S., 335, makes a very proper distinction between cases where the debts of the corporation undoubtedly exceed the liability of all the stockholders, and eases where a partial assessment, only, is necessary. Spear, J., says:
    1 ‘ 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 of diminished by the disposition of the issues to be determined later. The debt of the corporation,, as found by both referees, arid 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.
    Under the findings of the master, there seems to be no necessity, even to cover contingencies, to render judgment for one hundred per cent. Therefore, the holding in Mason v. Alexander 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 can not give jurisdiction, arises. 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 twenty-five per cent, of the stock seems to be at present required.
    The appeals will be dismissed.
    
      Stewart & Rector, for plaintiff.
    
      W. 0. Henderson et al, for defendants.
     