PROCEEDING TO ENFORCE STOCKHOLDERS LIABILITY.

Court of Appeals for Hamilton County.

#### The Cincinnati & Columbus Traction Co. v. The Union Savings Bank *&*Trust Co. *

Decided, April 22, 1918.

*Corporations*— Suit *to Collect Unpaid Stock Subscriptions*— Not *a Chancery Case and Not Appealable*— Jurisdiction *of Court of Appeals...*

An action to collect unpaid subscriptions to the capital stock of a corporation is not a chancery case within the meaning of Section 6, Article IV of the Ohio Constitution, and is not appealable.

*D. W. Murphy*and *Thos. L. Michie,*for appellant.

*Murray Seasongood*and *Robert P. Goldman,*for appellees.

*J. Schroder,'for*A. G. Schwab, and *John G. Mealy,*for Virginia R. Burch.

*

 For subsequent opinion in on another branch of the same litigation, see *Cincinnati & Columbus Traction Co.*v. *Union Savings Bank*& *Trust Company, post.*

By the Court.

Heard on motion to dismiss appeal.

The original proceeding in this ease was an action for the appointment of a receiver, marshaling of liens and the foreclosure of a mortgage. A cross petition was filed on behalf of Daniel W. Murphy, administrator of the estate of Otto Smith, deceased, setting up a judgment obtained against the Cincinnati & Columbus Traction Company for wrongful death and seeking to secure payment of balances due on subscriptions for stock made by numerous stockholders of said traction company. An order had been made in this case directing the receiver to proceed to the collection of any balances that might be due upon said stock subscriptions.

The court of common pleas sustained the demurrers to the amended supplemental cross-petition of said Daniel W. Murphy, *128administrator, and, said cross-petitioner having elected to stand on the averments of said amended supplemental cross-petition, and declining further to amend or plead, a judgment was entered dismissing such amended supplemental cross-petition at the cost of said cross-petitioner. To this judgment notice of appeal was given by said Murphy, administrator, and proceedings taken to perfect an appeal in this court.

The case coming on to be heard in this court a motion to dismiss the appeal for want of jurisdiction is filed.

The jurisdiction in appeal, of the court of appeals, is fixed by Section 6, Article IV of the amended Constitution, which gives the right of appeal only in chancery cases. The case of *Wagner*v. *Armstrong et al,*93 Ohio St., 443, has discussed and defined this right.

An action to collect an unpaid subscription to capital stock of a corporation is a suit at law to recover a money judgment. *(Smith, Recr.,*v. *Johnson et al,*57 Ohio St., 486.)

> “A court of equity has no jurisdiction, on the ground of avoiding a multiplicity of actions at law, of an action against a corporation which his been adjudicated a bankrupt, to enforce collection of unpaid subscriptions by stockholders of such corporation, as the liability of each stockholder presents a separate controversy unconnected with that of any other. ’ ’ *Kelley, Trustee,*v. *Gill, 62*L. Ed., 185 (245 U. S., 116). See also *Hale*v. Allison, 188 U. S., 56.

The cross-petition upon which appeal is sought does not raise a chancery question, and the court is therefore without jurisdiction.

The motion to dismiss the appeal is granted.

Jones, P. J., and Hamilton, J., concur.

Wilson, J., not participating.