53 N.J. Eq. 623 | New York Court of Chancery | 1895
The proceeding against an insolvent corporation, whether domestic or foreign, authorized by sections 70 and 72 of the Corporation act (Rev. p. 189), is a proceeding in rem. It may be commenced by bill or petition, and a receiver may be appointed with or without notice to the corporation, as the chancellor shall decide the exigencies of the case require. And if he orders notice to be given, he may direct that it shall be given either by service or by publication. The proceeding is summary in its character and strictly in rem. Its main object is to put the property of the corporation in the custody of the law, so that its proceeds may be applied in due course of administration to the payment of the debts of the corporation. The order appointing the receiver in this case is unquestionably valid, and I think it is equally indisputable that the receiver has, by force of it, full power to sell and transfer all the property of the defendant corporation in this state.
The defendant is not in a position where it can raise the question whether this court can require jurisdiction over a foreign corporation, by a notice pursuant to an order of publication, so as to pronounce a valid decree adjudging it to be insolvent and thereafter proceed to make distribution of its assets. The defendant has made a motion to dismiss the bill for want of equity under a notice given pursuant to paragraph 224 of the rules. This notice is, in all its essential qualities, under our practice, a demurrer. No one, I suppose, will pretend that if the defendant had filed a demurrer, that such act on its part would not have constituted an appearance to the suit for all purposes, and precluded it from denying that it was in court. And yet it has done that which, in all its legal consequences, is equivalent to the filing of a demurrer. The defendant must be held to have appeared to the suit and consequently to be now as completely subject to the jurisdiction of the court as if a formal appearance had been entered by it.
The motion to dismiss is denied, with costs.