142 Ga. 34 | Ga. | 1914
1. A corporation can not, as a plaintiff, maintain an equitable suit to marshal its own assets; and the appointment of a receiver under such a proceeding, over the objection of creditors, duly made, is error. Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329 (24 S. E. 755); Gresham v. Crossland, 59 Ga. 271; Martin v. Brown, 129 Ga. 562, 569 (59 S. E. 302).
2. Under the facts set out in the petition and its amendments, no case was presented in which a majority or minority of the stockholders were proceeding against other stockholders or directors and the company, because of facts authorizing such a proceeding, to protect their interest as against such defendants and obtain a distribution of the assets. But in substance this was a proceeding by the company itself, or its stockholders and directors, to prevent creditors from enforcing their claims, lest it might result in loss to stockholders.
{a) The fact that the stockholders and directors had each passed resolutions that the active conduct of business should cease, and that an equitable petition should be presented to the court for the appointment of a receiver, did not create such an emergency as authorized the directors themselves, as such and as stockholders (one other stockholder joining them), to obtain a receivership and an injunction against an objecting judgment creditor. This would be for the plaintiffs to create an emergency and then take advantage of it.
(b) In an amendment it was alleged that, on proper and economical administration of the assets, the company was amply solvent, and that the parties in immediate danger of loss were the stockholders.
(e) That the action under such resolutions was brought ih the name of the directors who were also stockholders (one director not being alleged to be a stockholder and one other stockholder joining as a plaintiff), and the company was named as a party defendant along with the creditors against whom the injunction was prayed, and that the company filed an amended answer joining in the prayer for the appointment of a receiver, did not change the status relatively to one of such creditors who held a judgment and who objected to the appointment'of a receiver and the grant of an injunction.
(d) The allegation in one of the amendments that, since the filing of the
3. The judgment creditor interposed objection to the grant of an interlocutory injunction, and to the appointment of a receiver, by filing a demurrer which challenged such a proceeding or the right to appoint a receiver under it. This could not be heard and determined as a demurrer at the interlocutory hearing, but could be considered as a legal showing against the interlocutory relief prayed.
(a) No point appears to have been made in the trial court as to any effect of not formally renewing the demurrer after the amendments, and such demurrer was considered on the hearing. This court will not uphold the judgment on the ground that one of the amendments was dated after the demurrer was filed.
4. Under the pleadings (no other evidence being brought up) it was error to appoint a receiver and grant an interlocutory injunction over the objection of the judgment creditor.
Judgment reversed.