
    Reynolds, Byrne & Co. v. Feliciana Steamboat Company.
    An appeal, taken to a return day which is changed hy law to a more distant day, and the record is not filed on the first, hut on the last retnorn day, will not be considered as abandoned; it is filed in proper time.
    
    
      ■ In a suit for a liquidation among stockholders of an incorporated company, it cannot be legally tried, nor judgment rendered, unless all the parties have been cited, answered or judgments by default taken against them.
    Stockholders in an incorporated company, cannot ho rendered liable in solido. The corporators are only liable in proportion to the slock each one holds.
    [898] The fact that the stockholders are made liable for losses, beyond the amount of the capital stock, docs not make each stockholder liable in solido, but oniy proportionably according to the number of shares held by him.
    Although the want of proper parties can in general only he taken advantage of by exception or plea; yofcif theplaintifF singled out a part of those who were parties and took judgment against them, while as to others the cause is continued, it may he assigned as error apparent on the record.
    Appeal from the court of the third district, for the parish of "West Feliciana, the judge of the parish court presiding, ad interim,.
    
    This is an action to recover the sum of $7934 from the Feliciana Steamboat Company, with ten per cent, interest; it being for advances made in cash, for commissions for accepting, and for the plaintiffs’ salary under special contract with the company, for $1000 for the year 1827; all of which more fully appears hy an account annexed.
    
      The plaintiffs commenced suit in April, 1830, and allege that the charter of said company has expired, and being themselves stockholders, they are desirous of having its affairs liquidated and settled; therefore to establish their demand and recover its amount, and also to settle and liquidate the company’s affairs, they institute this suit. They then set out the names of all the stockholders known to them, and pray that they be cited; and also that they be required to make known such others as may have been omitted. Interrogatories are propounded requiring each stockholder to state on oath, if he is a stockholder and what are the number of shares owned and held by each; and to state if they know any other stockholders and to name them. Amended petitions succeeded each other, and were filed from time to time, from 1830 until 1839, bringing in new parties as the names of additional stockholders were disclosed; and also citing in the heirs of those who in the mean time died off.
    Several of the stockholders made defendants, appeared; excepted to the plaintiffs’ right to maintain this action until a settlement of the affairs of the company be first had, its funds and means ascertained and the liability of each shareholder made known. That they are only liable for their proportion of any loss that may be shown. Some of them set up debts and demands [399] against the company. They pleaded the general issue and put the plaintiffs on strict proof of their claim.
    Some of the defendants excepted that the petition did not contain a clear and concise statement of the objects of the demand, the nature of the claim and cause of action; and that no definitive judgment could be rendered on it.
    A number of orders, motions and judgments by default were made, taken and set aside during the pendency of the case.
    Tinally on the 18th December, 1839, judgment by default was made final against a portion of the defendants; and continued as to some. Among those against whom judgnient was rendered in solido, were the present appellants, Lament Millaudon and James Dick. These two, took a separate appeal, and are the only parties defendant now before the court.
    Morgan, for the appellants,
    assigned errors.
    The appellants assign as errors apparent on the face of the record:
    1. The action is essentially joint and no proceedings could legally be had and no judgment rendered until all the corporators or co-partners were made parties. La. Oode, 2080, 2081, 2082.
    2. If this suit is instituted to recover a specific sum of money it should be dismissed, because nothing but a liquidation and settlement among the stockholders could be sued for. Woods v. 8. B. Fort Adams, 6 U. S. 83.
    3. In a suit for liquidation among the stockholders the cause should not have been tried, nor could judgment have been rendered against any one of them — the judgment could only have established the balance due.
    4. In a suit for liquidation among stockholders the cause cannot be legally tried nor judgment rendered unless all the parties have been cited and answered, or judgments by default taken against them. In this case, the cause was taken up and tried only or against a few of the defendants, and judgments [400] were rendered against them m solido. Some of the defendants had no1 even been cited.
    5. The defendants cannot be rendered liable in solido; they were stockholders in an incorporated company, and under the provisions of the charter they are only liable if at all for losses sustained by the company. See Act of Incorporation, 1 Moreau’s Dig. 261.
    6. The judgment of the court below is vague, uncertain and indefinite; it does not ascertain the amount for which the defendants are liable, nor does it respond to the pi'ayer of the petition.
    7. Justice requires that the judgment should be reversed, and the action dismissed, or at least that the cause should be remanded to the court below.
    Curry, acting for James Turner, Esq. counsel for the plaintiffs,
    made the following points:
    The plaintiffs and appellees move to dismiss the appeal on several grounds :
    1. It appears there are two appeals; the first is taken in March, 1840, returnable to the June term, to which the appellees are cited, but the record was not filedso that this appeal must be considered as abandoned; as the appellant is bound to bring up the transcript imifile it on the return day, or within three judicial days afterwards, or obtain time, which is not pretended here. Oode of Practice, 587, 588, and 589.
    The second appeal was granted in December, 1840, and returnable to the February term, 1841, and the record filed. But the appellant is not entitled to a second appeal if he abandons the first. Code of Practice, art. 594; Smith & al. v. Vcmhille & al. ; 11 La. Rep. 380.
    2. It is urged that the Act of 20th March, 1840, fixing the appeals from the third judicial district, for trial in February, and making them returnable to the second Monday of February, thereafter, makes the first appeal good by [401] filing the record on the second Monday in February, instead of the first Monday in June, to which the appeal was returnable. This act it is believed, only transferred the appeals taken to the June term, to February for trial; but that all the records should have been filed on the return day or within three judicial days afterwards. See Session Acts of 1840, p. 56.
    3. This cause cannot be examined on the merits, because, so far as regards the present appellants, the judgment appealed, was taken by default and made final, without any of the evidence being taken down in writing; and there is no statement of facts, or bills of exceptions or assignment of errors. For these reasons and grounds the appeal should be dismissed.
    The appellants having been allowed to file an assignment of errors on the trial, being within ten days after filing the record, the plaintiffs in reply contend that the judgment should be affirmed as it now stands for the following reasons.
    1. The action is against partners, stockholders or corporators, who are not only jointly but severally bound, or liable in solido, because the Feliciana Steamboat Company is or was a commercial partnership, in which each partner or stockholder is liable for the whole debt by the company. Claiborne é al. v. Their Creditors, 13 La. Rep. 279 ; Vigors & al. v. Sainet, Id. 300.
    2. It is urged, that all the stockholders were not made parties and that judgment cannot be taken against a part of them, unless all of them have been cited and answer. If this be the law, it cannot be assigned as error-The want of proper parties can only be taken advantage of by plea.
    3. In this case, the evidence in which judgment was rendered is not in the record; and nothing can be assigned as error which could have been cured by legal evidence.
    4. If the judgment here is viewed as an interlocutory one, for a specific sum owing the plaintiffs by the company; leaving the balance of the suit for the liquidation and settlement among the stockholders still open; then [402] an appeal will not lie and the present appeal should be dismissed.
    5. There is no apparent error on the face of the judgment appealed from. It is for a specific demand against the defendants in solido. They are certainly liable in that capacity both from the principles of law, the decisions of this court, and even by the terms of their charter; the last section of which provides that each of the stockholders shall be liable beyond the amount of his stock and in his individual capacity; See Charter, 1 Moreau’s Digest, 261.
    6. It is objected that the judgment is vague and does not show the sum for which the defendants are liable. The judgment is for a sp'eeific sum, and the credit can be ascertained from the tenor of the judgment. Id certurn est, &e. But it does not follow by any means because a judgment presupposes some further action of the court that it is therefore erroneous; it may not be final as to the whole matter; nothing-is more common than several judgments rendered in the different stages of suits for the settlement of partnership accounts, or of corporate companies. Some matters are by interlocutory, judgments sent before arbitrators or masters in chancery for settlement; other matters put in issue are settled by definitive judgments. This is tho common practice in chancery and is peculiarly applicable to our system; being a proceeding both in law and equity in the same suit. It is common to our jurisprudence and is done every day.
    
      1. There is nothing in the final part of the judgment that is erroneous, and the first part of it, to wit, for the amount of the plaintiffs’ demand, cannot be appealed from, as there is no evidence to show it was improperly given or for a wrong sum.
    The appellees obtained the certificate of the clerk of this court, that the record was not filed at the June term, 1840, and execution issued on the judgment. It should be affirmed with costs.
    Morgan, for defendants,
    in reply. [403]
    1. The first point made by the counsel for the appellees cannot be sustained, because there is no evidence that the appeal taken in March, 1840, was ever abandoned by the appellants, nor is such the fact, as is shown by their bringing up with the record the petition and citation of appeal. The statute approved 20th of March, 1840, had the effect of postponing the filing of the appeal until the second Monday of February, 1841, as has been recently held by the court in the case of JBostwiek v. Mis Creditors, and the certificate granted by the clerk of this court in June, 1840, improperly issued. The appeal taken in December, 1840, was only asked for out of great caution, and if unnecessary as we conceive it to have been cannot prejudice the rights of the appellants under the first order granting an appeal. The case of Smith v. Yanliñle et al. 11 La. Rep. 380, relied on hy the appellees, show that at least the appeal taken in December, 1840, must be sustained.
    2. The statute, approved 20th March, 1840, p. 6'6, went into operation instcmter, and abolished the previous laws, and at the same time did away with the June term of this court, for the trial of appeals from the parish of East and West Feliciana. It cannot he maintained that it “ only transferred the appeals taken to the June term to February for trial; ” because, it provides that from and after the passage of the act, there shall be but one return day from those parishes, and that is the second Monday of February.
    3. The third point cannot be sustained, because there is no method pointed out by law, by which a party against whom a judgment has been rendered final by default, can obtain a statement of facts.
    4. On the merits, it is submitted that the judgment of the court below is clearly erroneous; and that the assignment of errors filed by the appellants must be sustained.
    The cases cited by the counsel for appellees on the first point made by [404] him do not apply to this case. Commercial co-partners where the co-partnership is created by contract between the parties, whether by act under private signature or authentic, it is admitted are bound jointly and severally ,• but the plaintiffs and defendants in this case were members of a body corporate created by the legislature o'f this State. See 1 Moreau’s Digest, p. 261. As corporators each was only bound to the amount of his stock and no further, unless losses were sustained by the company, to an amount greater than the capital. Code of 1818, p. 88, arts. 11 and 12; Sarnf Code, arts. 427, 428; See also proviso to statute above referred to.
    5. In answer to the fourth point made by appellees. The court will perceive that the judgment is not interlocutory, and has not so been considered by the plaintiffs, for as has been stated by their counsel, they have taken out execution in the court below for the full amount of the judgment without any reservation, and this shows conclusively the error in the proceedings in the court below.
    The court will perceive from the petition that there is no averment that the parties were commercial co-partners, nor is it averred that any losses were sustained by the company; and it will not presume that facts not alleged were proven.
    Referring to the assignment of errors on file, it is respectfully submitted that the judgment of the court below should be reversed and the cause sent back to be tried between all the parties.
   BuntAED, J.

delivez-ed the opinion of the couz’t.

The plaintiffs represent in their petition that the Feliciana Steamboat Company is largely indebted to them for goods sold and advances made to the company, and for their salary as agents under special contract. That the charter of said company has expired by its own limitation, and that the petitioners being themselves stockholders are desirous of having the affair's of the company liquidated and finally settled, and for that purpose and to estab[405] lish their demand and to recover the amount thereof they institute the present action. They then set forth the names of the stockholders so far as known to them, and they conclude by praying for citation, and that the affairs of the company may be settled and liquidated, and that they pay their debts, and that the demand of the plaintiffs may be ordered to be paid with interest at ten per cent. Various amended and supplementary petitions were filed from time to time making new parties as the names of the stockholders were discovered. The suit was brought in 1830, and finally, in 1839, some of the defendants, the alleged stockholders, not having answered, judg ment by default was ordered against them, and as to the present appellants, James Dick and Laurent Millaudon, was made final, condemning them and some others in solido, to pay the whole amount of the plaintiffs’ demand, making allowance for what the plaintiffs themselves owed as stockholders, in proportion to. the number of shai-es held by them.

The appellees have moved to dismiss the appeal on the ground that a former appeal which was allowed, was abandoned by the appellants. We do not think the appeal first taken in this case was abandoned in the sense of art. S94, and the motion is overruled. 11 La. Bep. 382.

The case is before us upon various assignments of errors apparent on the record. Two only of the errors assigned, to wit, the 4th and 5th, need be noticed, because the opinion we have formed upon them is decisive.

4th. In a suit for a liquidation among stockholders the cause cannot be legally tried nor judgment rendered unless all the parties have been cited and answered or judgments by default taken against them. In this case the cause was taken up and tried only as against a few of the defendants and judgments were rendered against them in solido. Some of the defendants had not even been cited.

5th. The defendants cannot be rendered liable in solido. They [406] were stockholders in an incorporated company, and under the provisions of the charter they are only liable, if at all, for losses sustained by the company.

We are of opinion that both assignments are well taken. It was irregular and even inconsistent with the prayer of the petition to proceed and take a final judgment against a part of the stockholders, leaving the case still pending as to others; much less, in our opinion, were the plaintiffs entitled to a judgment against the defendants in solido. The plaintiffs as well as defendants were members of an incorporated association. The corporators at the time the debt was contracted were liable in proportion to the shares of stock which each one held. After the dissolution of the company by the expiration of the charter, their condition did not become more onerous in relation to each other, although as to debts which may have been contracted afterwards the corporators, considered as voluntary co-partners in a commercial concern, may have become liable in solido as to third persons.

It is, however, contended by the counsel for the appellees that by a proviso to the charter each of the stockholders is declared to be liable beyond the amount of his stock and in his individual capacity. The proviso is, that, notwithstanding the corporate character of this association, the stockholders shall not. be exempt from personal responsibility for losses which may De sustained heyond the amount of the capital stock. 1 Moreau’s Digest, 261. By that we understand that as it relates to losses sustained by the company the liability of each stockholder shall not be confined to the amount of his stock. But it does not follow, that each is liable, in solido, even towards third persons, for the whole of such loss sustained or debts contracted; and still less that one of the corporators who becomes a creditor of the company and consequently owes his own proportion of his debt, can recover from any one of his co-corporators, or all of them in solido, the balance due him.

[407] In answer to the first clause of the fourth assignment of error, it has been said by the counsel for the appellees, that the want of parties and the ground that all having an interest were not made parties, cannot be assigned as error but can be taken advantage of only by exception or plea. Admit that principle to be correct, yet the error appears to us to consist in having singled out a part of those who were parties and taking judgment final against them, while, as to others, the cause was laid over and appears yet to be pending. This is especially irregular and erroneous in a case having professedly for its principal object to liquidate the concerns of the company, and secondarily to obtain the payment of a claim for advances by one of the eo-partnei's.

It is therefore adjudged and decreed that the judgment of the district coui-t be reversed, and the case remanded for further proceedings, according to law, the plaintiffs and appellees paying the costs of this appeal.  