Statement of the Case.

on the uncalled and unpaid capital stock and the persons liable to pay the same, for the purpose of providing means to pay the debts of the corporation, and other appropriate relief. The company was duly served with process in the cause, in accordance with the laws and practice of the State of Virginia, certain of its officers were summoned, and the surviving trustees appeared voluntarily to the suit and answered the original and amended bills, whereby the court acquired full jurisdiction. to decree as to all the matters and things involved in the suit.

Such proceedings were had in the cause that, on the 14th of December, 1880, the court decreed as follows: (1) That the deed of trust of September 20, 1866, was valid under the laws of Virginia and binding upon the corporation; (2) that, at the time of the execution of the deed, the corporation had called for 20 per cent of the amount payable by the subscribers to its capital stock, and that 80 per cent of that amount, being $80 on each share, remained unpaid and uncalled for at the date of the decree, and subject to be applied to the payment of the debts of the corporation secured by the deed of trust; (3) that the right to receive such 80 per cent from the persons liable to pay it, as and when it should become payable by the terms of the contract between the company and the subscribers to the stock, was vested by the deed in the, trustees and their survivors, to be applied, when so collected, to the payment of the debts secured by the deed; (4) that the unpaid $80 per share was, by the terms of the contract between the company and the persons liable to pay the same, payable only in such amounts and at such times as the same might be required to be paid by the company through its president and board of directors; that no power or authority to sue for any part thereof was vested in the company or in the trustees under the deed, unless and until such call should first be made by the corporation, and that the trustees acquired no power to make such call by force of the deed of trust or otherwise; (5) that there was no property of the company wherewith to pay its debts, except the amount so remaining uncalled of its capital stock, and it was the duty of the proper officers of the corporation to call upon the persons liable therefor, to pay a

Statement of the Case.

sufficient amount of the unpaid $80 per share to carry out the trusts of the deed and pay the creditors secured thereby, but that the corporation and its proper officers had for many years wrongfully neglected to make such call; (6) that the unpaid and uncalled $80 per share remaining in the hands of the holders of the capital stock constituted a trust fund for the payment of the creditors of the company under the deed of trust; and that, by reason of the neglect and failure of the corporation to call for the payment of a sufficient amount thereof to satisfy its debts under the deed of trust, and thereby enable the trustees to sue for and recover the amount so called, the court possessed and would exercise such power, and would call for so much of the said uncalled amount as would be

necessary to perform the trusts declared by the deed and pay the debts secured thereby; (7) the surviving trustees were removed by the decree and the plaintiff was appointed by it in their stead, to execute the trusts of the deed; (8) there were debts owing by the company, entitled to be paid under the deed of trust, amounting to $509,392.41, each of which debts was particularly ascertained and ordered by the decree to be paid. The decree further adjudged that it was necessary and proper that 30 per cent of the par value of h share of the stock should be called for and required to be paid by the subscribers therefor and their assigns, for the purpose of paying the debts of the company under the provisions of the deed of trust; and that a call and assessment be and the same was thereby made upon the stock and stockholders of the company, and their assigns, of 30 per cent of the par value of the stock, being $30 on each share thereof, the same, when paid, to be paid to and received by the plaintiff as trustee under the deed, in the stead of the original trustees therein named.

The plaintiff accepted the appointment so made, and complied with its terms and conditions, and was and is duly qualified to act as such substituted trustee, and to have the rights, and perform the duties, conferred upon and required of him by the decree. By force thereof, and of the statute of Virginia in such case made and provided, he, upon accepting such appointment, and qualifying as such trustee, as required

Statement of the Case.

by the decree, became and still is substituted to all the rights, powers, duties and responsibilities of the trustees named in the deed of trust, and became and is lawfully entitled to receive and collect the assessment or call of $30 per share on each share of stock of the company, from the persons liable to pay the same. By virtue of the premises the defendant became indebted to him in the sum of $1890, being $30 on each of the 63 shares of stock. In the year 1884, the plaintiff instituted suit in the Circuit Court of the United States for the Eastern District of Missouri against the defendant to enforce such liability, and on the 15th of July, 1885, suffered a non-suit in the case.

For a second cause of action, the amended petition stated that the suit so instituted in the Chancery Court of the city of Richmond was, after the 14th of December, 1880, transferred to the Circuit Court of the county of Henrico, in the State of Virginia, a court of competent jurisdiction; that such further steps were taken therein that, on the 26th of March, 1886, a further decree was entered in the cause, adjudging that, for the payment of a large balance of the indebtedness of the company, so established, it was necessary and proper to make a call for the residue of 50 per cent remaining uncalled for and unpaid on the capital stock of the company, and ordering and decreeing that a call and assessment be made, and the same was thereby made, on the capital stock and the stockholders of the company, of $50 on each share thereof, and requiring the stockholders of the company and each of them, and their legal representatives and assigns, to pay to the plaintiff the several amounts thereby called for, and authorizing and requiring him to collect and receive said call and assessment; and, by virtue of the premises, the plaintiff claimed to recover $3150, being $50 on each of the 63 shares of stock.

The demurrer of the defendant Liggett set forth as grounds of demurrer that the amended petition did not state facts sufficient to constitute any cause of action; that it appeared from its face, that no cause of action accrued to the plaintiff by reason of any of the matters set forth in either the first or the

Statement of the Case.

second count, at any time within ten years next before commencement of this suit, or at any time within five years next before its commencement, or at any time within ten years next before the commencement of the suit in which the plaintiff alleged that he suffered a non-suit; that both the causes of action are barred by the statute of limitations of Missouri; and that the Chancery Court of the city of Richmond had no jurisdiction to make the assessment alleged, and it and the further assessment were and are void.

The suit against Liggett was commenced on the 12th of July, 1886, by the filing of a petition. A writ of summons was issued on that day and served on him on the 19th of July, 1886. A demurrer to the petition was filed on the 21st of September, 1886. The petition and the demurrer amounted in substance to the same as the amended petition and the demurrer thereto. On the 16th of October, 1886, the court sustained the demurrer. 28 Fed. Rep. 907. The decision of the court was based on views which it had previously expressed on demurrers to petitions at law and bills in equity for like causes of action, in 23 Fed. Rep. 695, and 24 Fed. Rep. 536. The ground of decision was, in all of the cases, that the suits were barred by the statute of limitations of Missouri.

On the 3d of November, 1886, a judgment was entered in the present suit against Liggett, for the defendant, and for his costs. On the 14th of December, 1886, by consent of parties, the judgment of November 3, 1886, was set aside. The plaintiff then, by consent, filed the amended petition, the contents of which are before set forth. The defendant filed his demurrer thereto, the court sustained the demurrer, and, the plaintiff electing to abide by his amended petition, judgment was entered for the defendant upon the demurrer, and for his costs. The judgment then proceeds, under date of December 14, 1886: "And thereupon the plaintiff, by attorney, presents to the court a writ of error to remove this cause to the Supreme Court of the United States, and a citation citing and admonishing the said defendant to be and appear at a Supreme Court of the United States, on the first day of the next term thereof, to be begun and held at Washington, D. C.,

Argument for Motion to Dismiss.

on the second Monday of October next; which said writ of error is allowed and said citation signed by the judge; and said plaintiff also presents to the court his bond, in the penal sum of five hundred dollars, which bond is approved and ordered to be filed as part of the record herein."

Mr. Enoch Totten (with whom was Mr. Mason G. Smith on the brief) first argued a motion to dismiss No. 306 for want of jurisdiction. The following were the grounds for the motion:

(1) There was never any writ of error issued to the said Circuit Court to bring up the judgment complained of;

(2) There never was any writ of error returned to or filed in this court, which had been previously directed to the Circuit Court, to bring up to this court for review the judgment complained of;

(3) This court is without jurisdiction to hear and determine this cause, there having been no writ of error issued or allowed, to bring into this court for review the judgment of the said Circuit Court herein.

This court can obtain jurisdiction to review a final judgment at law, rendered by a Circuit Court of the United States, only upon a writ of error. Rev. Stat. § 691; Sarchet v. United States, 12 Pet. 143; Bayard v. Lombard, 9 How. 530; Saltmarsh v. Tuthill, 12 How. 387; Washington County v. Durant, 7 Wall. 694.

The only writ of error in this record was "brought" on the 13th of December, 1886, the day before this judgment was rendered. A writ of error is "brought" when it is filed in the court which rendered the judgment. Brooks v. Norris, 11 How. 203; Credit Co. v. Ark. Central Railway, 128 U. S. 258.

The writ of error of December 13th was functus officio: it had operated on the judgment of November 3d, and was dead when that judgment was set aside. No other writ having been sued out, and no other citation having been signed or served in this case, it follows that there was and is no writ of error bringing up this last judgment for review.