Gambar halaman
PDF
ePub

and officers. And it has been held that after a railroad company has consolidated with another as authorized by their charters, and confirmed by legislation conferring all rights, powers and privileges belonging to either on the new corporation, liabilities of either of the old companies can be enforced only against the new corporation. A case different from the general rule has decided that, when the articles of consolida tion provide that the constituent companies shall continue in existence for the purpose of adjusting all claims against them, an unliquidated claim against one of the old companies must be adjudicated in an action against the latter before it can be enforced against the new corporation,3

§ 345. Proof of consolidation.- A defendant corporation can not be held liable for the debts and liabilities of another corporation, without a consolidation that has been authorized and has actually taken place. The existence of a statute authorizing it does not of course prove the fact, since action under the statute is necessary, and whether this has taken place can not be judicially known by the courts. The plaintiff must, therefore, make proof of the fact of consolidation, unless it is admitted; and it has been held that it may be admitted by the appearance of the consolidated company as a defendant to an action brought against the old company. Solemn admissions made by one of the constituent companies in a judicial proceeding, may be evidence against the consolidated company. In making proof of consolidation it has been held that a plaintiff is aided by the rule of estoppel which operates against corporations in other cases, prohibiting them from denying their corporate existence. The statutes generally

1 Chase v. Vanderbilt, 62 N. Y. 307. 2 Taylor on Corporations, 665; Indianola R. Co. v. Fryer, 56 Tex. 609. Cf. Houston &c. R. Co. v. Shirley, 54 Tex. 125; People v. Empire &c. Ins. Co., 92 N. Y. 105.

3 Whipple v. Union Pacific R. Co., 28 Kan. 474 (an action for personal injuries).

Louis Ct. App. No. 4440, not yet reported, but cited by S. D. Thompson, judge of that court, in 31 Cent. L. J. 4

Philadelphia &c. R. Co. v. Howard, 13 How. 307, 333.

7 Columbus &c. R. Co. v. Skidmore, 69 Ill. 566. This is very doubtful, however, unless the corpo ration has done something which

4 Southgate v. Atlantic &c. R. Co.. creates an estoppe!, the doing of (1875) 61 Mo. 90.

which is proved. S. D. Thompson

5 Kinion v. St. Louis &c. R. Co., St. in 31 Cent. L. J. 4.

provide that copies of the articles of consolidation, filed with the Secretary of State, shall be proof of the fact in all courts; and this it is supposed would be the rule without an express statute. In pleading consolidation, it is sufficient to state that the constituent companies, naming them, were authorized by law to consolidate, and that, having done so, they have become one corporation under a certain name. For in averring the fact of consolidation, the steps which have led up to it need not be stated.'

§ 346. Pending suits. It has been said that a pending suit may proceed to judgment against the old corporation, just as a suit against a feme sole may proceed to judgment against her after marriage. For the legislature has no power to authorize it, nor can the corporation act under legislative sanction, so as to defeat or prejudice the rights of plaintiffs in pending suits against it. As to such actions the corporation exists for the purpose of judgment; for as to them it has not lost its individuality or identity. For no act of a defendant can defeat the right of a plaintiff." Actions pending against the old company, therefore, do not abate. Even in case of a dissolution of its corporate existence, the existence of the defendant company continues for the purpose of the suit. For consolidation does not extinguish the liabil ity of old companies upon suits which were commenced prior to their amalgamation, even though the consolidation may be

1 Columbus &c. R. Co. v. Skid- Swartwout v. Michigan Air Line R. more, 69 Ill. 566. Co., 24 Mich. 389, 394; Shackelford

2 Collins v. Chicago &c. R. Co., v. Mississippi Central R. Co., 52 14 Wis. 492. Miss. 159; East Tennessee &c. R. Co. v. Evans, 6 Heisk. 607. Cf. Prouty v. Lake Shore &c. Ry. Co., 52 N. Y. 363.

3 Collins v. Chicago &c. R. Co., 14 Wis. 492. Cf. Hobart v. Chapelle, 14 Ind. 601; Commonwealth v. Atlantic &c. R. Co., 53 Pa. St. 9, 19.

4 Shackelford v. Mississippi &c. R. Co., 52 Miss. 15); Roosevelt v. Dale, 2 Cow. 581.

7 East Tennessee &c. R. Co. v. Evans, 6 Heisk. 607; Shackelford v. Mississippi Central R. Co., 52 Miss. 159; Baltimore &c. R. Co. v. Mus

Shackelford v. Mississippi &c. R. selman, 2 Grant Cas. (Pa.) 348; BrufCo., 52 Miss. 159. fet v. Great Western R. Co., 25 Ill. 353, 357.

6 Baltimore &c. R. Co. v. Musselman, 2 Grant Cas. 348; Hanna v. Cincinnati &c. R. Co., 20 Ind. 30;

8 Baltimore &c. R. Co. v. Musselman, 2 Grant, 348; Prouty v. Lake

accompanied by a change of name of the company engaged in the litigation.' It is not necessary that the plaintiff should take any notice thereof. He is entitled to judgment against the corporation by its former name.2

§ 347. Judgment against the new company. But although actions against the old companies may be prosecuted to judgment against the new company without new process,' still to obtain a judgment against the consolidated company itself, it must be substituted as defendant. Judgment against the consolidated company on claims against one of the original corporations, may be enforced by levy of execution upon the property of the latter, notwithstanding its dissolution. And the fact that the particular separate division on which a mortgage rests is sold at the same time and together with other consolidated divisions of the road, is in no manner a violation of the contract of the mortgagee. For where there is a concourse of creditors of the original companies, they are not to be required to levy execution, each against those portions only of the property originally belonging to the companies respectively indebted to them; but that they may sell the whole consolidated property and apportion the proceeds among themselves, because, if cut up into parcels and sold by divisions, it would lose its great value as a continuous line of road. If there has been an attempted, though void consolidation, which has been judicially dissolved, but while it remained de facto a judgment has been recovered against the consolidated com

Shore &c. R. Co., 52 N. Y. 363; Shackelford v. Mississippi &c. R. Co., 52 Miss. 159.

1 East Tennessee &c. R. Co. v. Evans, 6 Heiзk. 607.

2 Shackelford v. Mississippi &c. R. Co., 52 Miss. 159.

3 Indianapolis &c. R. Co. v. Jones, 29 Ind. 465; Kinion v. Kansas City &c. R. Co., St. Louis Ct. of App. No. 4440, not yet reported, but cited by S. D. Thompson, judge of that court, in 31 Cent. L. J. 4. But the Su

preme Court of Georgia has held that new process is necessary to bring in the consolidated company. Selma &c. R. Co. v. Harbin, 40 Ga. 706.

4 Prouty v. Lake Shore &c. Ry. Co., 52 N. Y. 363; Selma &c. R. Co. v. Harbin, 40 Ga. 706. Cf. Ketcham v. Madison &c. R. Co., 20 Ind. 260. 5 Ketcham v. Madison &c. R. Co., 20 Ind. 260.

6 Gilbert v. Washington City &c. R. Co., 33 Gratt. 586, 611.

pany, it will be allowed to stand after the dissolution as a judgment against the several constituent companies.1

§ 348. Debts of the old companies.-The new company succeeds to all the rights, franchises, privileges and immunities, and becomes subject to all liabilities of the constituent companies. Statutes in nearly all cases provide that the new company shall acquire the rights and be subject to the liabilities of the old. Therefore the debts of the old corporation

1 Ketcham v. Madison &c. Co., 20 v. Dunlap, 47 Mich. 456; Central R. Ind. 280.

2 Hancock Mutual Life Ins. Co. v. Worcester &c. R. Co., (1889) 149 Mass. 214; Abbott v. Railroad Co., 145 Mass. 450, 453; Pullman Car Co. v. Missouri Pacific R. Co., 115 U. S. 587; Baltimore v. Baltimore &c. R. Co., 6 Gill, 288; Tomlinson v. Branch, 15 Wall. 460; Ridgway Township v. Griswold, 1 McCr. 151; Chicago &c. R. Co. v. Moffitt, 75 Ill. 524; Miller v. Lennox, 5 Coldw. 514; Atchison &c. R. Co. v. Phillips County, 25 Kan. 261; Washburn v. Cass County, 3 Dill. 251; Paine v. Lake Erie &c. R. Co., 31 Ind. 283; Zimmer v. State, 30 Ark. 677; Thomas v. Abbott, 61 Mo. 176; Barksdale v. Finney, 14 Gratt. 338; Harrison v. Arkansas Valley R. Co., 4 McCr. 264; Brum v. Merchants' Mutual Ins. Co., 16 Fed. Rep. 140; Sappington v. Little Rock &c. R. Co., 37 Ark. 23; Louisville &c. R. Co. v. Boney, 117 Ind. 501; Selma &c. R. Co. v. Harbin, 40 Ga. 706; Montgomery &c. R. Co v. Boring, 51 Ga. 582; Baltimore &c. R. Co. v. Mussleman, 2 Grant Cas. (Pa.) 348; Lewis v. Clarendon, 6 Reporter, 609; Indianapolis &c. R. Co. v. Jones, 29 Ind. 465; St. Louis &c. R. Co. v. Miller, 43 Ill. 199; Peoria &c. R. Co. v. Coal Valley Mining Co., 68 Ill. 489; Robertson v. Rockford, 21 Ill. 451; Toledo &c. R. Co.

Co. v. Georgia, 92 U. S. 665; New York &c. R. Co. v. Saratoga &c. R. Co., 39 Barb. 289; Daniels v. St. Louis &c. R. Co., 62 Mo. 43.

Lightner v. Boston &c. R. Co., 1 Low. 338; Shaw v. Norfolk Co. R. Co., 16 Gray, 407; Western &c. R. Co. v. Smith, 75 Ill. 496; Thatcher v. Toledo &c. R. Co., 62 Ill. 477. The English codified law in the case of railroads is very general and perhaps instructive. It provides that, notwithstanding the dissolution of the dissolved company, and the amalgamation, everything before the time of amalgamation done, suffered, and confirmed, respectively, under or by virtue of any special act relating to the dissolved company, shall be as valid as if the amalgamating act had not been passed; and the dissolution and amalgamation, and the amalgamating act, and this part of this act, respectively, shall accordingly be subject and without prejudice to everything so done, suffered, and confirmed respectively, and to all rights, liabilities, claims, and demands, present or future, which if the dissolution and amalgamation had not taken place, and the amalgamating act had not been passed, would be incident to or consequent on anything so done, suffered, and

are enforceable against the new. Because, also, when a new corporation is formed by the amalgamation of two or more distinct corporations into one, the new corporation succeeds to all the faculties and rights of the several components, it must, as a necessary consequence, be subject to all the conditions and duties also, imposed by the law of their creation, both as to private persons and the public. For corporations can not by their own acts divest themselves of the duties and liabilities imposed upon them by law, the performance of which was the consideration upon which their charters were granted, and which thus entered into their contract with the Commonwealth. So that, as above stated, unless otherwise provided by statute, the new company succeeds to the rights and liabilities of the old ones. But a creditor of the old company is not bound to accept the responsibility of the new, for the old company is deemed to remain in existence for the purposes of actions. As a general rule corporate creditors have no standing in court to object to the consolidation of the debtor company with other corporations. For the reason that their claims remain a lien upon the property of the company after consolidation as before, and since they are in no wise con

6

confirmed respectively; and with respect to all things so done, suffered, and confirmed respectively, and to all such rights, liabilities, claims, and demands, the amalgamated company shall to all intents represent the dissolved company; and the generality of this present provision shall not be deemed to be restricted by any other of the provisions of this part of this act or by any provision of the amalgamating act that does not expressly refer to this present provision, and expressly restrict the operation thereof. "The Railways Clauses Act of 1863," 26 & 27 Vic. ch. 92, § 55.

1 Indianapolis &c. R. Co. v. Jones, 29 Ind. 465; Montgomery &c. R. Co. v. Boring, 51 Ga. 582; Thompson v. Abbott, 61 Mo. 176.

2 Tomlinson v. Branch, 15 Wall. 460; Gould v. Langdon, 43 Pa. St. 365.

3 Quested v. Newburyport Horse R. 127 Mass. 204; McCluer v. Manchester &c. R. 13 Gray, 124; s. c. 74 Am. Dec. 624; Langley v. Boston &c. R. Co., 10 Gray, 103; Freeman v. Minneapolis &c. R. Co., 28 Minn. 443. But see Ditchett v. Spuyten Duyvil &c. R. Co., 67 N. Y. 425. Cf. Tower Manuf. &c. Co. v. Ullman 89 Ill. 244.

4 Chicago &c. R. Co. v. Moffitt, 75 Ill. 524; Zimmer v. State, 30 Ark. 677; Tennessee v. Whitworth, 117 U. S. 147; Peoria &c. Ry. Co. v. Coal Valley Mining Co., 68 Ill. 489.

New Jersey &c. R. Co. v. Strait, 35 N. J. L. 323.

« SebelumnyaLanjutkan »