108 Ala. 390 | Ala. | 1895
In Pollak Co. etal v. Muscogee Manufacturing Company, at the present term, we practically settled the'controlling questions presented by these appeals. In that case the purpose, in one phase of the bill, was to have three specified attachments, and the levies thereof, upon goods of Poliak Company, a corporation, alleged to have been invited and procured by the debtor itself, and certain pledges of choses in action made by the debtor to two of those attaching creditors, declared parts of a general assignment executed by a debtor shortly after-wards ; and in another phase to have the attached property administered as a trust fund for the benefit of •creditors — the trust character arising, as contended, from the insolvency of the debtor corporation. Like that, the present bill, which is filed by a creditor of the same corporation, in one of its phases, seeks to have the property of the corporation distributed to all its creditors, as a trust fund of the same character; and, in another phase, unlike the other bill, seeks to annul both the attachments and the assignment, as fraudulent and void, and have the property administered by a receiver of the court’s appointment. The pledges of choses in action are sought to be iuvalidated for nonconformity, by the corporation, to the provisions of subdivision 7 of section 1664 of the Code of 1886, requiring a certain consent of stockholders, manifested in a prescribed way, to authorize a pledge of its property by a corporation. There are, in the amendments to the bill, many averments of fraud and collusion on the part of the assignors, the assignees, the sheriff, and the attaching creditors, all of whom are parties to the bill; but they all relate to the administration of the property subsequent to the levies of the attachments, and the execution of the assignment. They are acts of spoliation and maladministration, committed by these persons, which it would
As to the trust character of the property of the corporation, by reason of its insolvency, we settled that question, in an exhaustive and unanswerable opinion by Justice McClellan, in O’Bear Jewelry Co. v. Volfer, 106 Ala. 205 ; qnd followed that case in Pollak Co. v. Muscogee Mfg. Co., supra, repudiating the trust fund doctrine. There are some explanations contained in the separate opinion of Justice Coleman, in the O’Bear case, which were not passed upon by the other members of the court.
As to the pledges of choses in action, the statute relied upon (sub-div. 7, section 1664, Code of 1886) was enacted for the protection of stockholders, and a creditor cannot invoke it. — Nelson v. Hubbard, 96 Ala. 238, and cases therein cited at page 253, particularly; Beecher v. Marquette Rolling Mill Co., 45 Mich. 103, which we quoted and approved. There is no equity, therefore, in this ground of relief.
In discussing the validioy of the general assignment in respect of the charge of fraud, we do not overlook the fact that the last amendment filed alleges that said Ignatius Poliak (who under the averments of the bill was, essentially the corporation itself) not only did the acts of conversión and maladministration after the assignment was executed, which are charged against him and others in the bill, with- the - fraudulent intent and purpose of re-acquiring ownership and possession of the goods in the manner he is alleged to have acquired the same, but. that he, the said Poliak, also procured the issuance and
The motions to dismiss the bill for want of equity ought to have been sustained. We deem it unnecessary to consider the rulings of the court upon the demurrers to the bill; for whether well or illy, taken, there was no harmful error in sustaining them, since the bill ought to have been dismissed for want of equity. As we can not say, however, that the bill may not be amended so as to give it equity for the relief it seeks, and give the complainants a standing in court, to have the said alleged subsequent acts of maladministration investigated and corrected, we remark that we do not consider the bill, if so amended, multifarious; nor is it necessary that it be sworn to. The decree, on the appeal of complainants, will be affirmed; and on the appeal of respondents, will be reversed and a decree here rendered dismissing the bill for want of equity, unless within thirty days it shall be so amended as to give it equity, with power in the chancery, court, or chancellor in vacation, to extend the time, on sufficient showing. The cause will be re-mánd'ed.
Reversed, rendered and remanded.