Roti-irock, Oh. J.
i. couroKARy^recutor011 homeron°aocount of Ralanee flue ou of limitations. It is not claimed that the liability of the estate of Greene is based upon a written contract. It is claimed that Greene was, and his estate is, the owner of nine hundred and ten shares of the stock of the railway company, and that twenty per cent . . , " , . , J A only ot the par vaLue thereof has been paid. Ihe bar 0f the statute, therefore, applies in five years after the cause of action accrued, and the question to be determined is, when did the right of action accrue.
Page 448
It appears from the averments of the answer that the bonds upon which plaintiff’s judgment is founded became due and payable July 1, 1875. The right of action against the company was then complete. The defendant’s obligation upon the unpaid balance of the shares of stock then existed, and any action of the railroad company to recover such unpaid balance would have been barred by the statute in five years. The question to be determined, then., is, whether the general statute of limitations, applicable to the case as between the parties to the contract, is in any manner changed by the statute which provides that the stock-holder shall be liable to the creditors of the corporation for unpaid Installments on the stock owned by them.
2. STATUTE Of limitations: íaciieíofy creditor. Appellant contends that under the statute no right of action accrued to the plaintiff against the defendant until after a judgment was obtained against the company, and J ° , ° I ■ “ execution was issued, and property demanded upon which to levy. Appellee insists that a right 0f ae|qon accrued against the defendant, without judgment against the corporation. And the defendant further claims that, if a judgment against the company was necessary before suit could be brought against the defendant, the judgment should have been obtained and the suit commenced against the defendant within five years.
Without determining whether or not the creditor of a corporation can in any case maintain an action against a stockholder without first obtaining judgment against the corporation, we think that there is nothing in the law making a stockholder liable to a creditor in such cases which in any manner enlarges the operation of the statute of limitations, or affects any right which the stockholder has thereunder. If the theory of the plaintiff be correct, it would be within the power of a creditor of a corporation to extend the statutory bar for a period which surely never was contemplated by the law-making power. In the case at bar, the action upon the bonds might have been brought at any time within ten years
Page 449
after they became due. The issuance of execution, and demand for property to satisfy the same, could have been delayed for another period of ten, or possibly twenty, years, and an action brought against a stockholder five years thereafter. It is not the policy of the law to put it in the power of a party to thus extend statutory limitations. Counsel on both sides have presented numerous adjudged cases in courts of other states, which, it is claimed, are in point upon the question involved in the appeal. Ve need not cite or comment upon them, because we think the principle here involved has been determined by this court. In
Baker v. Johnson Co., 33 Iowa, 151, it was held that the statute of limitations commenced to run from the time the plaintiff had a claim against the county, and not from the time he presented it to the board of supervisors for allowance. In that case, he had no right to institute suit against the county until he presented the claim to the board, and it was held, nevertheless, that the statute commenced to run before the claim was presented. This case was in principle followed in
Prescott v. Gonser, 34 Iowa, 175, and in
Beecher v. Clay Co., 52 Id., 140; and in
Hintrager v. Hennessy, 46 Id., 600, it was held that the satute of limitations commenced to run against one claiming under a tax deed from the time he was entitled to a deed, and not from the time when the deed was actually executed and delivered. The ground of all these decisions is, that a party holding a claim or right of action may not be allowed to prolong the operation of the statute by refusing to take the steps which the law requires in order to authorize the maintenance of an action.
In the case at bar, the plaintiff recovered judgment against the corporation on the fourth day of June, 1878. It took no further action until July 22, 1880, when execution was issued and demand made upon the officers of the corporation for property upon which a levy could be made. And this action was not commenced until April 11, 1881. No cause for delay is shown; and there can be no such excuse,
Page 450
because it was within the power of the plaintiff to cause execution to issue at any time after June 4, 1878, and upon return thereof an action could have been commenced within five years.
Affirmed.
Adams, J. dissentwig.