Bacon v. Michelin Tire Co., No. 4605

No. 4605 | Ga. | Jun 24, 1925

Per Curiam.

1. An equitable petition was brought by a number of creditors of an insolvent corporation, in belialf of themselves and all other creditors of the corporation who might intervene as plaintiffs in the ease, against the corporation and several individuals who, as alleged, organized the company and transacted business in its name before the minimum capital stock had been subscribed for, praying for judgments against all the defendants, and seeking to require the individual defendants, who it was alleged organized the defendant corporation and transacted business in its name before the minimum capital stock had been subscribed for, to jointly and severally make good the minimum capital stock with interest (under the provisions of the Civil Code, § 2220). Held, that the petition was not subject to general demurrer; nor to special demurrers on the grounds of misjoinder of parties plaintiff and defendant, and of misjoinder of causes of action, in that it sought to recover of defendants distinct and independent claims of separate and distinct plaintiffs. John V. Farwell Co. v. Jackson Stores, 137 Ga. 174 (73 S.E. 13" court="Ga." date_filed="1911-12-13" href="https://app.midpage.ai/document/john-v-farwell-co-v-jackson-stores-5578157?utm_source=webapp" opinion_id="5578157">73 S. E. 13).

No. 4605. June 24, 1925.

2. The demurrer based upon the claim that plaintiffs are estopped from denying that the indebtedness set out in their behalf is the debt of the defendant corporation is without merit, in view of the allegations in the petition which recognize these debts as the obligation of the corporation itself.

3. Nor is there merit in the ground of the demurrer making the point that “It is not shown by the petition that subsequently, and prior to the date the indebtedness was contracted, there was not issued other “shares of stock in said company, and to whom, if any such were issued, and the amount thereof;” for if any such stock was issued and that were a good defense to this suit, it should have been pleaded.

4. If there had been a discharge in bankruptcy of any of the parties, or if there was an application for discharge pending, and that were a good defense, it should have been pleaded.

5. Nor is there any merit in the ground of the demurrer which raises the contention that the declaration seeks to recover on two separate and distinct causes of action. Beok, P. J., dissents from the ruling made in this note.

Judgment affirmed.

All the Justices concur,- except Beck, P. J., dissenting from the ruling made in the last headnote, and Gilbert, J., absent for providential cause. Wallis é Fort and R. L. Maynard, for plaintiffs in error. J. A. Fort, J. L. Filis, J. O. Graham, and G. C. Webb, contra.