is brought to collect the delinquent assessment; but the impossibility of this is at once apparent, because there are no allegations in the complaint showing how much stock is owned by each of the defendants, because their liability, if any, is strictly several, and the joinder of them in one suit is out of the question, and because the collection of the assessment is one of the things the receiver himself is to do after his appointment. Nor could a receiver be appointed to aid in any such purpose, for by the very hypothesis involved suits may be maintained by the stockholders themselves to collect the assessment (McConnell v. Combination M. & M. Co., 30 Mont. 239, 76 Pac. 194, 104 Am. St. Rep. 703), and a receiver for that purpose is unnecessary. The same considerations apply to the view that the delinquent assessment constitutes trust funds which the defendants have converted to their own use. While we are not convinced that unpaid obligations can be so regarded merely because they are due from directors, it suffices to say that the plaintiff stockholders may themselves do all that a receiver could do toward the restoration of these funds. The last suggestion, that a court of equity may remove a trustee who has violated his trust, and, in order that the trust may not fail for want of a trustee, may substitute another person to preserve the trust property, is, as an abstract proposition, indubitable. But, as applied to this case, to what does it lead? can I. Co., 70 Neb. 454, 97 N. W. 601. Wheth- | The first impression conveyed is that the suit er the complaint at bar is sufficient to warrant any primary relief is rendered doubtful by the difficulty in stating the particular kind of decree or judgment, other than receivership, sought to be entered responsive to its averments. In this we are unaided by the prayer; for the only relief, besides receivership, specifically demanded, is that the individual defendants be enjoined from disposing of the company's property, or removing its records, and this is not supported by any allegation. Realizing, however, that it is the facts alleged, and not the prayer, which must determine the relief which may be granted, we turn to the suggestions of plaintiffs' counsel that the right to collect the delinquent assessment is a chose in action, property in the nature of bills receivable, and "constitutes assets of the company for which it could maintain actions"; that the defendant directors are trustees for the company, and the assessments due from them are trust funds in their possession which they have refused to pay over to the company, the cestui que trust, but which they "have in a sense converted to their own use"; that, as the company, the cestui que trust, "may have its action against its delinquent trustees," as they cannot sue themselves, and as the legal control of the company is in their hands, such action is maintainable in its behalf by the plaintiffs as stockholders; that it is within the power of a court of equity to remove a trustee who has violated his trust, and, since a trust is not allowed to fail for want of a trustee, to substitute another person to preserve the trust property; that, "the present action being one for and on behalf of a cestui que trust against its trustees, it manifestly appears that it is not one for the sole purpose of having a receiver appointed, but the receivership asked for is solely ancillary to the maintenance of the suit in question, and incidentally, too, a correction of the breach of trust on the part of the respondent trustees in failing to perform the plain duty incumbent on them to collect, sue for, and obtain the assessment delinquent from other stockholders than themselves." While this is Again assuming, without deciding, that the unjustified failure of the defendants to pay or collect the assessment constitutes a breach of trust sufficient to warrant their removal from office, still to suspend them from their functions before their guilt has been judicially determined, and to put the control of the company into the hands of a stranger, requires a real necessity. Whether any such necessity appears depends to some extent up on what a receiver could do that the defend ants have neglected or will neglect, and the the company, to collect the delinquent assess- somewhat elusive, we shall conclude, for the present at least, that the allegations of the complaint are sufficient to withstand the charge that no primary relief can be justi-preserved are its mines, its mills, and the de fied by them. linquent assessment. So far as the complaint [2-5] 2. It is also elementary, however, discloses, the defendants may be as anxious that the primary relief sought must be such to see the debts paid and the property cleared as will be aided by the appointment of a as are the plaintiffs, differing from them only receiver. If the object of the suit can as in the method by which these things may be well be attained without a receiver as with accomplished. There is not the slightest inone, none should be appointed. Forsell v. timation that the mines and mills are not Pittsburg & Mont. C. Co., 42 Mont. 412, 113 being or will not be adequately preserved by Pac. 479. A further analysis of the sugges- the defendants, save as the loss thereof may tions above set forth is therefore required, be involved in the continued failure to colwith a view to ascertaining whether, under lect the assessment. Neither is it charged any of them, a receiver would be justified. that the defendants are indifferent to the ob ligations of the company, to the possible effects of the sheriff's sales, or to the ultimate fate of the company's property, save as such indifference may be assumed from their failure to collect the assessment. And the only way in which it is claimed that the receiver could pay the debts or redeem the property from the sheriff's sales is to collect the assessment. So that, after all is said, the whole matter comes back to the collection of the assessment, which, as we have above remarked, may be accomplished, if at all, by the plaintiffs themselves. whether a clear abuse of discretion is shown. The order appealed from is affirmed. BRANTLY, C. J., and HOLLOWAY, J., concur. (60 Colo. 302) THOMAS v. DENVER & R. G. R. CO. (No. 8254.) (Supreme Court of Colorado. Dec. 6, 1915.) RAILROADS 276-LIABILITY FOR INJURIES TO TRESPASSER. track and a switch track, and as a train which Action by Walter Thomas, by his next friend, against the Denver & Rio Grande Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed. [6] 3. Leaving the complaint, we note that the defendants answered, denying the neglect of duty imputed to them, and pleading, among other things, that they have endeavored in every reasonable way, and are still endeavoring and expecting, to raise funds with which to pay off the indebtedness of the company and protect the stockholders therein. The evidence taken at the hearing authorizes the view that the defendants, as directors, waived the right to sell the stock in payment of the assessment, reserving the right to enforce collection otherwise; that they were actuated in this course by the belief that financial and other conditions rendered the success of such a sale unlikely; that they have not paid nor attempted to enforce the collection of said assessment, because advised by competent counsel that the same is illegal and void; that they are anxious to secure funds with which to pay the obligations of the company, to redeem its property, and to restore it to activity as a profit-earning concern, and are convinced that they can more readily and promptly do so by means of bonds, with or without mortgage, as may be authorized by the stockholders; and that there was and is some justification for these opinions. This being true, it was entirely reasonable for the court to conclude that the equities of the complaint had been so met, for the time being, at least, that the propriety of the appointment was not established. It is no answer to this to say that the merits of the main case were not involved; for the scope of a hearing of this kind after notice is measured by the right of the resisting party, and he may, upon affidavits before answer, or upon oral evidence under the answer, if answer has been made, show that the essential equities of the complaint are in dispute (Lyon v. United States F. & G. Co., supra); and while his success or failure in no wise concludes the parties upon the merits of the main action, his success will authorize a denial of the ap-accident a long freight train consisting of 20 plication, because a receivership is never a matter of course, but rests in every instance upon the sound discretion of the court cautiously exercised. Brown v. Erb-Rigney Co., 48 Mont. 17, 133 Pac. 691; Hickey v. Parrot S. & C. Co., 25 Mont. 164, 64 Pac. 330. [7] On appeal from such an order, the question before us is not whether we agree in all respects with the views of the trial court, but Melville, Sackett & Calvert, of Denver, for plaintiff in error. E. N. Clark and R. G. Lucas, both of Denver, for defendant in error. GARRIGUES, J. This action is to recover damages for injuries sustained by Walter Thomas, a boy about seven or eight years old, at Sedalia, Colo., a small station on the Denver & Rio Grande Railroad between Colorado Springs and Denver. The main line of railroad passes through the town in an easterly and westerly direction. North of and parallel to the main track is a long siding, enabling trains to meet or pass. Some 200 or 300 feet south of the main line is the schoolhouse, and a public road runs between the schoolhouse and the tracks. The railroad right of way through the town and the schoolyard are unfenced. On the day of the cars and a caboose, headed for Denver, went onto the siding to meet or pass another train and, after it had gone by, started to pull out onto the main track. About this time a number of school children, dismissed for the noon recess, were playing in the schoolyard. Observing the moving freight train, some six or seven of them, including the Thomas boy, ran across the street and the main track and "hopped the train," and by swinging on the ladders on the sides of the cars were having a free ride, or "stealing a ride." While so engaged, with his feet or knees in the stirrup and holding onto the ladder with his hands, a jerk of the train threw the Thomas boy off, and the wheels ran over his limbs, crushing them so badly they had to be amputated. There is no evidence that any of the trainmen saw or knew that the boys were on the train. An offer was made to show that the school children had engaged in similar acts before without remonstrance from the train crew, which offer was refused. At the close of plaintiff's case, defendant moved for a directed verdict, which was granted, and the only question is whether or not the court was in error in this ruling. A. 288, 72 Am. St. Rep. 597; Pettit v. Rail- The judgment will therefore be affirmed. GABBERT, C. J., and SCOTT, J., concur. The evidence fails to show wherein defendant was negligent of any duty it owed to the plaintiff. The verdict was directed upon the ground that the evidence was not legally sufficient to justify a recovery. In this we concur. Jefferson v. Railway Co., 116 Ala. 294, 22 South. 546, 38 L. R. A. 458, 67 Am. St. Rep. 116; Railway Co. v. Sain, 90 Ark. 278, 119 S. W. 659, 22 L. R. A. (N. S.) 910; Traction Co. v. Nelson, 66 Ark. 494, 52 S. W. 7; Catlett v. Railway Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254; Nolan v. Railway Co., 53 Conn. 461, 4 Atl. 106; Hasting v. Railway Co., 143 Fed. 260, 74 C. C. A. 398, 5 L. R. A. (N. S.) 775; Underwood v. Railway Co., 105 Ga. 48, 31 S. E. 123; Griffin v. Railway Co., 101 Ill. App. 284; Haberlau v. Railway Co., 73 Ill. App. 261; Leo Le Beau v. Railway Co., 69 Ill. App. 557; Railway Co. v. Roath, 35 Ill. App. 349; Udell v. Railway Co., 152 Ind. 507, 52 N. E. 799, 71 Am. St. Rep. 336; Evans v. Railway Co., 142 Ind. 264, 41 N. E. 537; Railway Co. v. Redding, 140 Ind. 101, 39 N. E. 921, 34 L. R. A. 767; Railway Co. v. Bradford, 20 Ind. App. 348, 49 N. E. 388, 67 Am. St. Rep. 252; Dougherty v. Railway Co., 137 Iowa, 257, 114 N. W. 902, 14 L. R. A. (N. S.) 590, 126 Am. St. Rep. 282; Horn v. Railway Co., 124 Iowa, 281, 99 N. W. 1068; Wilson v. (Supreme Court of Colorado. Dec. 6, 1915.) Railway Co., 66 Kan. 183, 71 Pac. 282; Railway Co. v. Plaskett, 47 Kan. 107, 26 Pac. 401; Railway Co. v. Henigh, 23 Kan. 347, 33 Am. Rep. 167; Monehan v. Railway Co., 117 Ky. 771, 78 S. W. 1106; Swartwood v. Railway Co., 129 Ky. 247, 111 S. W. 305, 19 L. R. A. (N. S.) 1112, 130 Am. St. Rep. 465; Railway Co. v. Webb, 99 Ky. 332, 35 S. W. 1117; Vertrees v. Railway Co., 95 Ky. 314, 25 S. W. 1; Hubener v. Railway Co., 23 La. Ann. 492; Seeley v. Railway Co., 157 Mich. 688, 122 N. W. 214; Burtram v. Railway Co., 148 Mich. 166, 111 N. W. 749; Hamilton v. Railway Co., 142 Mich. 56, 105 N. W. 82; Katzinski v. Railway Co., 141 Mich. 75, 104 N. W. 409; Ecliff v. Railway Co., 64 Mich. 196, 31 N. W. 180; Mehalek v. Railway Co., 105 Minn. 128, 117 N. W. 250; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. (60 Colo. 356) TRINIDAD NAT. BANK v. JAMIESON HOUSE FURNISHING CO. (No. 8373.) ATTACHMENT 305-INTERVENTION BY OTH- Code Civ. Proc. § 99, provides that no final judgment shall be rendered in a cause wherein an attachment writ has been issued and a levy made until 30 days after such levy, and that any creditor of the defendant making and filing an affidavit and undertaking, as required by plaintiff, together with his complaint setting forth his claim or demand, shall be made a the defendant to secure his claim or demand as party plaintiff and have like remedies against the law gives to plaintiff. Section 102 provides that, when it shall appear that levies or writs der defendant insolvent, writs of attachment of attachments have been made sufficient to renmay issue in suits upon contracts not yet due. Section 104 provides that, where the affidavit is made and filed as before provided, the clerk Section 105 may issue a writ of attachment. provides certain conditions under which actions may be commenced and writs of attachments issued. Held, that section 99 was intended to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes upon its payment of their claim against Innis, and on the second day following, August 26th, the bank recorded a trust deed of the property, previously executed by Innis for its use and benefit to secure the payment of the $500 note. permit creditors to prorate the proceeds of the attached property, and was not intended to permit them to prosecute their claims to judgment under publication of notice and levy of a writ by the original attaching creditor, and intervening creditors must enforce their rights by the same legal modes as were available to the original attachment creditor, and where the only service made on the defendant and the only The defendant in error, the Jamieson writ of attachment issued or levied was in the House Furnishing Company, filed its comoriginal suit, a judgment in favor of an inter-plaint, affidavit and undertaking in attachvening creditor was void, since "remedy" is the ment against Innis, on the 3rd of Septemmeans employed to enforce a right or redress an injury, and sections 102, 104, and 105 indi- ber, 1910, to recover the sum of $285.68, and cate that the Legislature intended that a writ was also upon application made a party should be issued and levied, not only by the orig- plaintiff to the Lochard suit. inal plaintiff, but by each intervening creditor (citing Words and Phrases, Remedy). [Ed. Note. For other cases, see Attachment, Cent. Dig. § 1086; Dec. Dig. 305. For other definitions, see Words and Phrases, First and Second Series, Remedy.] Error to District Court, Las Animas County; A. Watson McHendrie, Judge. Action by the Jamieson House Furnishing Company against the Trinidad National Bank. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. A. C. McChesney, of Trinidad, and John A. Gordon, of Denver, for plaintiff in error. H. A. Schmidt, of Trinidad, for defendant in error. BAILEY, J. On the 3rd of August, 1913, the Jamieson House Furnishing Company, defendant in error, brought an action for possession of certain land, in the District Court of Las Animas County, against plaintiff in error, the Trinidad National Bank. The situation is shown by an agreed statement of facts, upon which the cause was submitted and decided by the trial court. The property involved is lots 8 and 9, block 15 of Terry's addition to the city of Trinidad. August 5th, 1910, Susie M. and Thomas B. Lochard instituted an action in attachment against the owner of the property, C. S. Innis, to recover the sum of $162.25. A writ of attachment issued therein and was levied on the property. Summons issued upon which return was made that defendant could not be found. Thereafter the plaintiff Thomas B. Lochard filed affidavit showing the defendant Innis to be a nonresident of the state, and an order was thereupon entered for service by publication. The summons was published as required by law, entitled "Susie M. Lochard and Thomas B. Lochard, plaintiffs, v. C. S. Innis, defendant," stating the amount of the demand as $162.25 and costs of suit. The bank subsequently dismissed the Lochard suit, and in due course foreclosed the trust deed and procured a deed of the property from the public trustee. Meanwhile the Jamieson company recovered judgment against Innis, execution issued, the property was advertised and sold to satisfy the judgment, and in due course a sheriff's deed was executed and delivered to it. About a month after the recovery of this judgment the sheriff made return upon the writ of attachment theretofore issued in the cause of Lochard v. Innis, under an order of court di recting that the same be made nunc pro tunc. It will be observed that Innis never at any time entered his appearance in any of the proceedings; that no summons was issued or served by publication or otherwise giving him notice of the claims and demands of either the bank or the Jamieson company; that the only service made, and the only writ of attachment issued or levied was in the orig inal suit of Lochard v. Innis. In the court below the Jamieson company relied upon its sheriff's deed to eject the bark, who in answer set up its deed from the public trustee. Judgment was rendered against the bank, which it brings here on error for review. Sections 99 and 100 of the Code of Civil Procedure, R. S. 1908, respectively, read as follows: "That no final judgment shall be rendered in a cause wherein an attachment writ has been issued and a levy made thereunder, until the expiration of thirty days after such levy has been made; and any creditor of the defendant making and filing an affidavit and undertaking, as herein before required of the plaintiff, together with his complaint setting forth his claim or demand constituting his cause of action against the defendant, shall, upon application to the court wherein such action is brought, be made a party plaintiff in such action, and may have like remedies against the defendant to secure his claim or demand, as the law gives to the original plaintiff. the action, as hereinbefore provided, a dismis"After any creditor has been made a party to sal by the first or any subsequent attaching On the 24th of August, 1910, the Trinidad creditor of his cause of action, or proceedings National Bank filed its complaint, affidavit in attachment, shall not operate as a dismissal of the attachment proceedings, as to any other and undertaking in attachment against Innis, attaching creditor; but that the remaining credto recover the sum of $500.00 due upon aitors may proceed to final judgment therein the promissory note, and was upon application same as though no such dismissal had been made." made a party plaintiff to the Lochard suit. On the following day the Lochards assigned It is provided by Section 99 that within writ any creditor of the defendant, upon | tervening attachment creditor by Section 99 filing affidavit, undertaking and complaint, are no more or less than such means as were shall upon application be made a party plain- available to the original plaintiff to establish tiff to the proceeding "and may have like and secure his claim, that is to say, upon the remedies against the defendant to secure his filing of affidadvit, undertaking and comclaim or demand as the law gives to the plaint, with application to be made a party original plaintiff." What is meant by "like plaintiff in the original proceeding, the interremedies"? Is a subsequent intervening cred-vening creditor merely places his claim, in itor required to proceed in all particulars to acquire jurisdiction as did the original plaintiff, or is the service by publication and levy of the writ by the original plaintiff sufficient for a judgment in favor of such intervening creditor? It is clear that if the Jamieson company had proceeded as did the original plaintiff, by levying its writ and publishing notice in due course, it would in all respects have been placed upon an equal footing with the latter for the purpose of prorating in the proceeds of the attached property. point of time of action and for the purpose of proration, upon an equal basis with that of the original plaintiff, and should enforce his rights by the same legal modes as were available to the one first to act. It certainly was not intended thereby to put an intervening creditor in a better position than he who first attached, and the statute grants no privilege which obviates taking the steps ordinarily requisite to jurisdiction in order to recover a valid judgment upon a claim properly established. The claim of the Jamieson company was a separate cause of action. To hold that "like remedies" comprehends that the attachment debtor has constructive notice, by the original proceeding, of any and all causes of action which might be subsequently asserted against him upon his contractual obligations, would be to declare that which is plainly not within the purview of the section, much less within its express terms. Section 102, Code, R. S. 1908, provides that whenever it shall appear that "levies of writs of attachment have been made upon the property of the defendant" sufficient to render him insolvent, it shall, upon application, be ordered that "writs of attachment" may issue in suits upon contracts not yet due, in order that such attaching creditors may prorate in the proceeds of the attached property. Section 104 reads thus in part: The plain purpose of the statute was to permit creditors to prorate the proceeds of attached property, not to permit them to establish rights in a strange and unusual way. The provision simply makes it possible for all creditors to put themselves in a position of equality in respect to the satisfaction, out of the property attached, of claims properly asserted and regularly adjudicated, and it is a matter of administrative policy and convenience that all creditors intervening are, upon application, named as plaintiffs in one general proceeding for the purpose of determining and adjudicating their respective rights. Prior to its adoption the first in time secured a preferential right over the claims of all other creditors. Speed was made paramount, and the first attaching creditor gained an exclusive, and oftentimes an unfair advantage over others. Section 99 appeared in the amendment of 1894, and was designed, as its express terms indicate, to eliminate the possible occurrence of such inequality under the law. This was the unquestionable purpose of the enactment of the new section, and therefore if it was intended to therein provide a means whereby any and all intervening creditors are permitted to prosecute their claims to judgment under publication of notice and levy of a writ by the original attaching creditor, that should appear in plain terms, and not by resort to doubtful construction. The constitutional provision concerning due process demands that all laws which permit the taking of property upon constructive notice shall be subjected to strict scrutiny by the courts, and the intent to accomplish that end must be made apparent by clear and express terms, which is by no means the case with the statute under con-manded with directions to enter judgment in sideration. Remedy is the means employed to enforce a right or redress an injury. 2 Bouvier's Law Dictionary, p. 870; 7 Words & Phrases, p. 6073. The "like remedies" secured to an in "In every case where an affidavit shall be made and filed, as aforesaid, it shall be lawful for such clerk to issue a writ of attachment." tions under which "actions may be comSection 105 also provides certain condimenced and writs of attachment issued." These expressions in the act indicate that the legislature intended that a writ should be not only issued, but levied by the original creditor who sets up a new and independent plaintiff, and as well by each intervening cause of action. The issuance of a writ, without levy thereof, would be useless. The judgment rendered in favor of the Jamieson company was void, and no rights were acquired by it under the sheriff's deed. The court below erred in adjudging it the owner and entitled to the possession of the property as against the bank, and therefore, the judgment is reversed and the cause re favor of the plaintiff in error. Judgment reversed and cause remanded with directions. GABBERT, C. J., and WHITE, J., concur. |