Kennedy v. California Savings Bank

This is an appeal from an order dissolving an attachment. The action is upon certificates of deposit issued to plaintiff by the defendant the California Savings Bank, a corporation in which the other *95 defendants are the stockholders, and the relief demanded is for a judgment for the amount of money represented by such certificates, and against each of the defendants for the proportionate part thereof for which he is liable as a stockholder.

The motion to dissolve the attachment was made by the defendant Haver male alone, and was upon these grounds: 1. That said action is upon a statutory liability, and not upon a contract; 2. That the writ of attachment, in its statement of plaintiff’s demand against him, is not in conformity with the complaint.

These grounds are widely different, the first going to the right of the plaintiff to any attachment in the action, and the last relating only to an irregularity in the writ itself which could be avoided by the issuance of another, and unless it was the intention of the court to sustain the motion upon the first ground, it should have specified in the order granting the same that it was based upon the latter ground alone, thus leaving…

I concur in the judgment of affirmance, but I express no opinion on the question whether or not the liability of a stockholder, under the constitution and statute, for his proportionate part of such debts as the corporation may afterwards incur, is the result of- “ a contract for the direct payment of money ” made by the stockholder, within the meaning of section 537 of the Code of Civil Procedure. There has been no decision in this state holding that an attachment will lie in such a case; and the opinion of the court in Green v. Beckman, 59 Cal. 545 , is rather the other way. In Dennis v. Superior Court, 91 Cal. 548 , no such question arose or was discussed. And it is not claimed in appellant’s brief that in any case cited from other states the direct point here involved was definitely decided. An attachment is a harsh statutory process by which the property of an alleged debtor is violently taken away from him prior to an adjudication of the debt, and it should be confined to cases which clearly come within the terms of the statute; and it is not clear to me at the present time that the liability of a stockholder for something that may possibly happen is within the clause of the…