MIDDLETOWN NAT. BANK v. TOLEDO, A. A. & N. M. RY. CO.

MIDDLETOWN NAT. BANK v. TOLEDO, A. A. & N. M. RY. CO. (Circuit Court, S. D. New York. October 9, 1901.) Parties — Action against Stockholders — Ohio Statute. An action cannot be maintained to enforce the statutory liability of stockholders under Rev. St. Ohio, § 92(50, as amended in 1894, which expressly provides for an action jointly against all the stockholders, Including those who are out of the jurisdiction, or for other cause cannot be served, where the complaint shows that there are stockholders who are not made parties. On Demurrer to Complaint. See 105 Fed. 547. Lucius H. Beers, for demurrer. Schuyler C. Carlton and Charles N. Judson, opposed, [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. It is thought that the question raised by this demurrer should be decided upon the assumption that the action is the one provided for by section 3260, Rev. St. Ohio, as it stood after the amendment of 1894. Inasmuch as that section expressly provides for an action jointly against all the stockholders, including such as are out of the jurisdiction or for other cause cannot be served, and the complaint avers that there are stockholders who have not been.made parties, there is a lack of parties defendant, and the demurrer is sustained. If, moreover, the amendments of the statute passed in 1900 are to be considered, the position of the demurrants is even stronger. Manifestly this action is not the one thereby provided for. Demurrer sustained and complaint dismissed.