Mortimer

The plaintiff commenced an action to recover an alleged delinquent assessment on shares of gtock alleged to be owned by the defendant. The defendant appeared and answered and a trial was had in the lower court before the court sitting without a jury. The trial court made findings in favor of the plaintiff. From a judgment entered on those findings the defendant has appealed and has brought up the judgment-roll and a bill of exceptions. The bill of exceptions is so brief that it covers only two pages of the transcript and contains little, if anything, material to the points presented by the defendant.

The first point made by the defendant is that under section 349 of the Civil Code the plaintiff had no right to institute actions against some of the delinquent stockholders and at the same time, as to other stockholders, to proceed in the ordinary manner and take the ordinary relief of conducting a sale of the delinquent stock. In making this contention the defendant asserts that section 349 of the Civil Code should be construed as though it were worded as follows: “On the day specified for declaring the stock delinquent or at any time subsequent thereto and before the sale of the…