1888.] Opinion of the Court-Sawyer, C. J. included in the note set out to the Father de Smet Company, was ever improperly expended, or used for any purpose other than the legitimate objects of the corporation; nor is there a particle of testimony tending to show that every dollar claimed was not advanced and paid by plaintiff exactly as is indicated by the testimony on behalf of the plaintiff. The defendants rest, alone, upon the points, that the evidence introduced by the plaintiff is incompetent to establish the facts proved, as against the defendants personally, or being proved, that the facts established do not impose a personal liability upon the defendants, and upon their allegation that they were not stockholders at the time the indebtedness accrued. As to the money paid to Garber and Thornton, they rely upon the additional defense, that the action is barred by the statute of limitations. As to the statute of limitations, the first money paid to Garber and Thornton was in August or September, 1879, and the last in August, 1880. The payments were made from time to time as the services of the litigation proceeded. But the transaction and service were continuous, and may be regarded as one transaction, and the payment of items in a running account. The last payments were within the statutory period, so that the bar does not attach to any part. Besides, the defense is an affirmative one, set up by the defendants themselves, and it devolves upon them to show, affirmatively, that the bar has attached, and to what part. Now, it does not appear how much was paid more than three years before the bringing of the suit, and the court has no evidence upon which to apply the statutory bar, if any there be, to any particular part of the sum paid. The defense, therefore, on on both grounds must be overruled. A judgment in favor of McMasters against the Wyoming and Dakota Water Company recovered upon the $109,049.76 note, given by the corporation to the Father de Smet Company for balance of advances made by the latter to the former, and proceedings thereunder, was introduced in evidence by plaintiff, under objection by defendants, that, a judgment against a corporation is not competent evidence in an action by a creditor against a stockholder of the corporation, to enforce a personal liability. There are some authorities, including some New York Opinion of the Court-Sawyer, C. J. [December, cases, apparently depending upon peculiar statutes of that state of a highly penal character, that seem at first blush to sustain this view. But I think they are inapplicable. However that may be, the weight of authority appears to be very largely to the effect, that a judgment against a corporation for a corporate debt, is, at least, prima facie, if not conclusive, evidence against the stockholders therein, when sought to be held liable for such debt; and many of the authorities seem to hold it conclusive, except upon proof of fraud, or collusion, or when there is a defect of jurisdiction. (2 Morawetz on Private Corporations [2d ed.], 886; Cook, Stocks, sec. 209; Taylor on Corporations, sec. 737; Freeman on Judgments, sec. 177; Donworth v. Coolbaugh, 5 Iowa, 300; Grund v. Tucker, 5 Kan. 47; Carne v. Brigham, 39 Me. 35, 40; Milliken v. Whitehouse, 49 Me. 527; Thayer v. Lithographic Co. 108 Mass. 523, 528; Hawes v. Anglo-Saxon Co. 101 Mass. 385; Bohn v. Brown, 33 Mich. 257; Slee v. Bloom, 20 Johns. 669; Schaeffer v. Insurance Co. 46 Mo. 248; Hoagland v. Bell, 36 Barb. 57; Hastings v. Drew, 76 N. Y. 9-15; Stephens v. Fox, 83 N. Y. 313; Wilson v. Coal Co. 43 Pa. St. 424; Bank v. Chandler, 19 Wis. 457; Glen v. Springs, 26 Fed. Rep. 494.) This appears to me to be the better view. At all events, it is not a matter of any consequence, in this case, for the liability is fully made out by the oral evidence, various notes, and the record of the action of the boards of directors of the two coporations, prior to and independent of this judgment. It might just as well have been omitted. Indeed, it seems to have been introduced merely to complete the history of the transactions under investigation, and to show the payments made and credited on the liability alleged in the complaint, which payments and credits were denied in the answer. The payments credited, were, in fact, the two sums realized upon the sales of the property upon executions issued upon this judgment, shown by the return of the sheriff upon the executions. issued and filed in the case. Indeed, this record seems to be favorable to the defendants rather than against them, as it proves payments of a considerable amount. At all events, the case was fully made out without it, and it can do no harm, even if erroneously admitted. 1888.] Opinion of the Court-Sawyer, C. J. I am fully satisfied that the plaintiff is entitled to recover. I cannot go through the long record, and rule, specifically, and independently, upon every exception taken to the evidence by defendants. I have indicated the character of the important evidence, and the exceptions thereto, and given examples of that upon which I have acted in deciding this case. The other evidence considered is largely of a similar kind, and the exceptions of like character. It is necessary to consider one part of the evidence, in its relation to others, in order to decide, intelligently, upon its admissibility. Generally, therefore, I overrule the objections taken by defendants. Should a bill of exceptions be required, it would, necessarily, include nearly all, if not the whole evidence in the case, as there is very little, that was not taken under objection on some ground on the part of the defendants, and it is necessary to consider one part as illustrated by the others. The facts I have taken pains to set out very fully, and at large, in the findings; and the question, after all is, what is their effect upon the rights of the parties? The case can better be disposed of upon the facts, than upon rulings upon specific isolated items of evidence. If the acts of the parties, as set out, constitute a liability against the corporation, then they must create a personal liability upon each stockholder for his proper share. As before stated, there can be no liability on the part of the corporation without creating a corresponding liability for his share against the stockholder. It may well be that a fraudulent and collusive transaction between the party in whose favor the liability is sought to be created, and the directors of a corporation intentionally cooperating together, could not cast any personal liability upon a stockholder; but, then, such a transaction would be equally void as to the corporation. I cannot now, conceive of a case in which there is a valid debt, or liability, against the corporation where there would not, under the constitution and statutes, be a corresponding proportionate personal liability against a party, who was a stockholder, at the time when the debt, or liability was incurred. If this be so, then, the only question as to the liability can be, is there a liability against the corporation? And if that be so, then any evidence, that is competent to estab Opinion of the Court-Sawyer, C. J. [December, lish the liability, as against the corporation, must be competent to establish the liability, of the stockholders, for the liability of the corporation being established, the liability of the stockholder for his share, follows as an inevitable legal consequence by the express terms of the constitution and statute. But in this case there is no evidence at all of any collusion or fraud— nothing to show that the indebtedness in question was not honestly contracted for the legitimate purposes of the corporation, and honestly paid by the plaintiff, Borland, who was, like the defendants, personally, liable for his proper share. It would seem from a consideration of the whole case, upon the evidence before the court, that the stockholders of the two corporations mentioned in the findings, acted in concert proceeding harmoniously, and satisfactorily, while the Wyoming and Dakota Water Company had a prospect of acquiring, and enjoying a large and valuable property. While the prospects were good, the assessments to meet the expenses of their operations were, cheerfully, paid by the defendants, as well as others. But when the right to the water upon which the value of the investment of the water company wholly depended, was adjudged against them, after a vigorous litigation, their hopes were blighted, and their investment became nearly worthless. Then the stockholders declined to pay the assessments levied to meet the liabilities of the corporation, and the plaintiff, Borland, alone being a large, if not the largest stockholder, assumed the burden, and paid off the existing indebtedness. If, this be so, it is but consistent with justice and common honesty, as well as the requirements of the law, that the defendants should be required to refund to him their just share of the amounts so paid. Let judgment be entered for plaintiff, against each defendant, for his portion of the amount due as stated in the findings, with costs. 1888.] Opinion of the Court-Deady, J. JAMES SWIFT v. S. S. MEYERS ET AL. CIRCUIT COURT, DISTRICT OF Oregon. DECEMBER 24, 1888. 1. NOTICE IN SUMMONS IN A SUIT TO ENFORCE THE LIEN OF A MORTGAGE.-A suit to enforce the lien of a mortgage is not one to recover money or damages only, and therefore the notice inserted in the summons must be according to the direction in subdivision 2 of section 53, Comp. 1887. 2. JUDGMENT OF STATE COURT IN THE NATIONAL COURT, SITTING IN THE SAME STATE. The judgment of a state court may be collaterally questioned or attacked in a national court, sitting in the same state, for a want of jurisdiction over the subject-matter, or of notice to the defendant, the same as if it was a judgment of a court of another state. 3. SUIT TO ENFORCE THE LIEN OF A MORTGAGE.-A suit to enforce the lien of a mortgage by the sale of the property is in the nature of a proceeding in rem, and in case the mortgagor or his successor in interest is a non-resident or not found, so that he cannot be personally served with process, in the state, the court may decree a sale of the property on such substituted or constructive service of process on the mortgagor as the legislature may provide; but in such case there is no presumption in favor of the jurisdiction of the court, and unless the record shows a compliance in all essential particulars with the statute authorizing such service its decree is null and void. 4. CASE IN JUDGMENT. — A statute of Oregon (Comp. 1887, sec. 54) provides that if a defendant in a suit cannot be found, service of the summons may be made by delivering a copy of the same "to some person of the family . . . . at the dwelling-house or usual place of abode of the defendant." In a suit to enforce the lien of a mortgage on property in Linn County, the return of the sheriff showed that the defendant could not be found, and that a copy of the summons was delivered to a "member" of the family, "at his usual place of abode in said (Linn) county," on which service the court gave a decree by default for the sale of the property under which the defendants claim. Held, that the service was invalid and the decree of sale thereon null and void, because the return did not show that the substituted service of the summons was made at the defendant's usual place of abode in the state, in whatever county it might be, but only at his usual place of abode in Linn County. 5. CONTRADICTING A RECORD.-Semble, that the record of a court cannot be collaterally impeached or contradicted except by a suit in equity, brought for the purpose of setting aside a judgment, on the ground that in fact the court never acquired jurisdiction to give the same. Before DEADY, District Judge. Mr. Scott Beebe, for the plaintiff. Mr. Albert H. Tanner and Mr. Charles E. Wolverton, for the defendants. DEADY, J. This action is brought by the plaintiff, a citizen of California, against the defendants, citizens of Oregon, to |