Peychaud v. Weber

Wyly, J., dissenting. The plaintiff, the liquidator of an insolvent insurance company, alleges that when he to ok charge of the corpora *134 tion there were no funds to pay its debts, which amounted to some forty thousand dollars; “that your petitioner in his official capacity demanded from each of the stockholders of said compary payment into his hands of a sum equal to twenty per cent, on the amount due on their stock notes, with which demand said stockholders have refused and neglected to comply. That Arnold Weber of this city is a subscriber to said corporation for ten shares of its stock and has furnished, given and delivered to said corporation his stock note for the sum of eight hundied dollars, dated eighteenth April, 1867, and payable on demand. “ That said Arnold Weber is therefore indebted to said company, according to the call made by your petitioner, in the sum of one hundred and sixty dollars, being twenty per cent, on the amount of his said note, and being his proportion towards the payment of the debts of said company. Wherefore petitioner prays, the premises being considered, that the said Arnold Weber be cited herein, and that after due proceedings had he be condemned to pay your petitioner, in his official capacity, the sum of one hundred and sixty dollars with legal interest from judicial demand and costs of suit.” The answer is a general denial, and a special denial that the defendant is a stockholder and in any manner responsible for the debts of the corporation as charged; “and if further-answer be necessary, this respondent denies that plaintiff has aDy cause of action against him, and even were he a stockholder in said insurance company, he could not be held responsible as charged, as the plaintiff has not filed a tableau or statement of the claims against said association, whether real or pretended, so as to enable the stockholders to ascertain what proportion each stockholder would have to contribute towards the payment or liquidation of said indebtedness, and it is only by that means that a necessity of a contribution can be shown as against the stockholders and the amount to be paid. Wherefore he prays to be dismissed hence with costs ” From the pleadings it will be observed that the suit is for a money judgment. The matter in dispute is the sum demanded of the defendant. That sum the plaintiff alleges is one hundred and sixty dollars, and for which he prays judgment. There is no reconventional demand set up, the prayer of the answer being simply that the defendant “ be dismissed hence with costs.” The contest is, not to determine whether or not the defendant subscribed for ten shares of stock and executed the note; that might be, and yet plaintiff would have no cause of action, as in case the company had assets sufficient to pay its debts, or in the event its creditors should permit their claims against the corporation to become prescribed, voluntarily remitted, or otherwise extinguished. *135 The prayer of the petition is, not for a decree that the defendant is a stockholder and has executed a certain note, but that the defendant be condemned to pay your petitioner one hundred and sixty dollars ■with legal interest from judicial demand and costs of suit.” The prayer of the petition determines the character o.f the action. ■In it we also ascertain the sum in controversy. It matters not out oí what contract the sum demanded arose; whether it is part of a large or a small contract; whether the note in a suit is one of a series executed in a large contract of sale or not, it is the sum demanded in the suit; it is the amount of the note, if that be -the basis of the action, regardless of the dimensions of the contract of sale out of which it sprung, that constitutes the amount in controversy, ■and the amount in controversy and not the dimensions of the contract •out of which it arose, must alone be considered in ascertaining the jurisdiction of this court. Very often in large contracts, small sums are required to be paid in installments; yet in a suit to enforce the payment of one installment, I apprehend the amount of that installment, and not the amount of the contract out of which it proceeded, would be considered in order to ascertain the jurisdiction of the court. In the case before us the plaintiff has no action for the amount of the note of $800. He has no right to collect that. The cause of action is not the note, it is the obligation of each stockholder to contribute his share to pay the debts of the insolvent corporation. This is the •obligation sought to be enforced, and which the defendant contends should not be enforced, that forms the basis of the present action. As a stockholder the defendant had the right to participate in the profits of the company in proportion to the amount of the stock subscribed by him, so likewise he incurred the legal obligation to contribute his share to relieve the company of its losses or debts. This legal obligation to contribute amounts to one hundred and sixty dollars as alleged by the plaintiff.' It is the amount in dispute which being less than five hundred dollars is below the jurisdiction of •this court. I believe the appeal should be dismissed for want of jurisdiction, -and therefore dissent from the opinion of the majority of the court.