110 N.J. Eq. 164 | N.J. Ct. of Ch. | 1932
The complainants have applied for an order to show cause why the defendant company should not be adjudged insolvent and a receiver appointed to wind up its affairs pursuant to the provisions of the General Corporation act. The defendant company was organized in December, 1927, under the general act concerning insurance companies (P.L. 1902 p. 407; 2 Comp. Stat. p. 2838), and the acts amendatory thereof and supplemental thereto. Among the allegations contained in the bill is one to the effect that in December, 1931, the commissioner of banking and insurance caused an examination of the books, records and affairs of the defendant company to be made, determined that the defendant company had become insolvent and thereupon took possession of all the assets of the said company. The complainants are stockholders and creditors of the defendant company. Other allegations of fact contained in the bill are similar to those contained in the petition of the commissioner of banking and insurance in the matter entitled "between Frank H. Smith, commissioner of banking and insurance, petitioner, and Washington Casualty Insurance Company et al., defendants," filed in this court January 29th, 1932, and in which matter I have just filed an opinion.
The only other question which need now be decided is: has this court any jurisdiction under the General Corporation act to appoint a receiver for the defendant company and to wind up its affairs? The question must be answered in the negative. It was raised in my opinion in Smith, Commissioner, v. WashingtonCasualty Insurance Company, supra, but not answered, because an answer was unnecessary to a decision in that cause. Much of what I there said, however, is applicable here but need not be repeated. Chapter 244, P.L. 1931, provides in detail for the appointment of receivers of insolvent insurance companies and enjoining them from the exercise of their franchises. These provisions are clearly inconsistent with those of section 65 of the General Corporation act. Vice-Chancellor Buchanan has recently reached the same conclusion in Smith, Commisioner, v.Monmouth Title and Mortgage Guaranty Co.,
The requirements of that subsection are jurisdictional. Not only do they not appear here but the contrary is alleged in the bill. The commissioner has not refused such demand and is in actual possession. The application for an order to show cause is denied. *167