
    CORPORATIONS — LIMITATION OF ACTIONS — PLEADING,
    [Franklin (2nd) Circuit Court,
    September Term, 1907.].
    Wilson, Sullivan and Dustin, JJ.
    F. M. Marriott v. Columbus, Sandusky & Hocking Ry. Co.
    1. Judgment Assessing Statutory Liability against Stockholders to" PAsT Indebtedness of CORPORATION Proportioned as to Stock Owned by EJacs Severally.
    An averment in a petition in an action to assess statutory liability against stockholders of an insolvent corporation, that the defendants are stockholders and liable as such, though not specifying the shares held by each, permits, after the corporation’s indebtedness is first ascertained, thfe taking of 9 several judgment against all who are solvent and withiw the jurisdiction in such proportionate amount as the stock owned by easis is to the entire indebtedness together with costs.
    
      2. Appeal Does not Prejudice Stockholders Assessed for Stockholder’s Liability by Possibility of Additional Assessment being Necessary.
    While an appeal from a judgment assessing statutory liability against stockholders will not lie against such stockholders as have paid their assessments, the creditors are not estopped to appeal from the judgment as to those not paying, nor will the latter be prejudiced thereby in the event that an additional assessment be found necessary. Likewise it is without prejudice to stockholders not made parties until after the running of the statute of limitations unless it affirmatively appear that they were insolvent when the plea of the statutory bar was made.
    ,3. Payment of Counsel Fees to Plaintiff Does not Estop Appeal by Him.
    Prosecution, of an appeal by plaintiff to an order assessing statutory liability against stockholders of an insolvent corporation is not estopped by allowance and payment, out of the fund brought into court, of attorney fees to plaintiff’s counsel.
    .4. Statute of Limitations not Good as a Plea by Nonresident Defendants.
    The plea of the bar of the statute of limitations is not good as against a nonresident defendant absent from this state when a cause of action against him accrued. The statute does not commence to run until he comes into the state or enters his appearance by pleading in the action.
    [Syllabus approved by the court.]
    G. H. Stewart, for plaintiff.
    Henderson, Livesay & Burr, for defendant.
   •DUSTIN, J.

In an action to assess the statutory liability against the stockholders .of a corporation an averment in the petition that certain defendants are ¡stockholders and'liable as such is sufficient to warrant proof and judgment for any number of shares in the nam'e of each.

In such action the court is not authorized to render a judgment, •without regard to the amount of the indebtedness of the corporation, for an amount equal to the face value of the stock; but after first ascertaining the indebtedness must render a several judgment against all 'solvent stockholders within the jurisdiction in proportion to the stock owned by each for a sufficient amount to cover such indebtedness and costs.

The interlocutory order of July, 1905, was afterwards merged in the order of December, 1906, and the two together constituted the final order in thé case from which the plaintiff could not appeal as against such defendant stockholders as had theretofore paid to the receiver the full amount of the judgment against them, although not estopped to appeal from the judgment against the other defendants not paying. Nor shall such other defendants be prejudiced thereby, as any additional assessment must be made upon the same basis as if the stockholders thus released were still before the court, and the loss thus incurred borne by the creditors. A like rule will be applied to such stockholders as were not made parties until more than six years after the right of action accrued and were therefore released from all liability upon a plea of the statute of limitations, unless it affirmatively appears that at the time of such plea, they were insolvent.

The allowance by the court and receipt' by the attorneys for the plaintiff of a fee of $15,000 and certain expenses paid out of the fund brought into court through their efforts did not estop plaintiff from prosecuting an appeal.

The defendants, Leroy S. Lincoln, and William Huston, were residents of the state of Pennsylvania; and absent from this state when the right of action accrued against them. The period limited for the commencement of the action against them did not begin to run until they came into the state or entered their appearance by pleading in November, 1903. The defense interposed is not good as to these two defendants.

Upon a re-examination of the issues presented by the Pullman Company and George Bellows, we adhere to the former holding of this court that the Pullman Company is liable on 1353.34 shares and that George Bellows is liable as found by the master. We adhere also to our former conclusion as to the stock held by Pomeroy, trustee, and the Sessions’ estate.

The stock held by the, partnership, Stearns and Hoover and Charles-Parrott and associates, is released from assessment under the defense of the statute of limitations, and as to all other stock not herein referred to, we are in accord with the findings of the court of common pleas, except that the liability of assignors of stock must be governed by the rule stated in the’case of Poston v. Hull, 75 Ohio St. 502 [80 N. E. Rep. 11].

We are of opinion that, allowing for insolvency and nonresidence of stockholders, the assessment should be 50 per cent of the face value of all stock not exempt under the rule hereinbefore stated.

Wilson and Sullivan, JJL, concur.  