Van Camp v. McCulley

Citations

• 89 Ohio St. (N.S.) 1

Syllabus

<p>Creditor of insolvent corporation — Sues for unpaid stock subscriptions — Pending demurrer, trustee in bankruptcy appointed— Trustee may ■ be substituted as plaintiff — With leave to die amended petition and make new parties — Effect of substitution and amendment — Error to sustain demurrer to original petition, when — Court procedure.</p> <p>1. Where a creditor of an insolvent corporation enters suit in behalf of himself and other creditors against C. and other stockholders, to compel payment into court of unpaid subscriptions to capital stock of the corporation, C. demurs on the ground that plaintiff has not reduced his claim to judgment and exhausted his legal remedies, and, pending the demurrer, a trustee of the insolvent corporation is appointed in bankruptcy. Held-. The court has power in furtherance of justice to substitute the trustee as plaintiff with leave to file an amended petition and bring in another subscriber as a defendant.</p> <p>2. At a subsequent term, the demurrer still pending, the court on motion of C. struck out the former order of substitution as an irregular assumption of jurisdiction. Held: This was error.</p> <p>3. Meantime, between the order of substitution and the order to strike out, the trustee had filed his amended petition and issued summons to the new defendant, who answered. The amended petition of the trustee added matter explanatory of the origin of the indebtedness of C. and new allegations showing the right and title of the trustee to maintain the suit. Held: Neither the substitution of the trustee as plaintiff nor his amendment to the petition changed the cause of action or the nature of the action; the case was then pending upon the amended petition, and the defendant C. was still in court pursuant to the original summons to answer to the cause of action.</p> <p>4. Nevertheless, the court heard and sustained the demurrer to. the original petition and dismissed the cause. Held: This was error, and the judgment of the circu