65 So. 820 | Ala. | 1914
Complainants (appellees) in this cause, at whose instance receivers have been appointed to take charge of defendant’s (appellant’s) property, are sim
“The assets of insolvent corporations constitute a trust fund for the payment of the creditors of such corporations, Avhich may be marshaled and administered in courts of equity in this state.”
The chancery court exercises its unquestioned poAver in aid of equitable rights by appointing receivers in proper cases. The facts of reasonably clear averment upon Avhich depends the propriety of so proceeding to the relief of complainant in the present case are as follows: Defendant’s mill building, constructed of highly inflammable material, and its included machinery, constituting substantially all defendant’s property (the land upon which it stands belonging to another), have been abandoned by defendant—by which the bill in
It is the well-settled general rule that the process of receivership is an ancillary remedy in aid of the primary object of litigation which must be of equitable cognizance; and no bill can be maintained for the mere appointment of a receiver apart from some distinct ground of equitable relief.—34 Cyc. 29. The complainant asking for such process must show that he has a right or interest in or to the subject-matter of the proposed receivership, or that it constitutes a special fund to which he has a right to resort.—Ft. Payne Furnace Co. v. Ft. Payne Coal & Iron Co., 96 Ala. 472, 11 South. 439, 38 Am. St. Rep. 109; 34 Cyc. 34. On the ground of his equitable ownership of an interest in the propererty of an abandoned, defunct, or insolvent corporation a stockholder may maintain his bill to secure his interest, and to that end may have a receivership. Texts to this effect are cited by appellee. But prior to the statute quoted above the law of this court was that chancery would not take charge of and administer the assets of a corporation at the suit of its creditors at large on the mere ground of insolvency.—O’Bear Jewelry Co. v. Volfer, 106 Ala. 205, 17 South. 525, 28 L. R. A. 707, 54 Am. St. Rep. 31; Barrett & Co. v. Pollak Co., 108 Ala. 390. 18 South. 615 54 Am. St. Rep. 172. So
It does not follow, however, that the decree appointing receivers must be reversed and annulled. The facts alleged in the bill were sufficient to challenge the attention of the court, to set the judicial mind in motion, to afford an inference that complainants might on a better bill be entitled to the relief sought, in short to furnish a basis for amendment, and if general demurrer, going to the substance of the bill, had been interposed, complainant must have been given an opx>ortunity to amend before a dismissal of his bill, nor would it have been necessary under our statute that the amended bill should pursue exactly the theory of relief propounded by the bill in its original shape.—Code, §§ 3095, 3121; Singo v. Brainard, 173 Ala. 64, 55 South. 603; McDuffie v. Lynchburg Shoe Co., 178 Ala. 268, 59 South. 567. It cannot be said, therefore, that the order appointing receivers was coram non judice.
Now when the motion for a receiver was called defendant appeared by counsel and informed the court that it “would not resist the appointment of a receiver or take any action whatever in the matter.” This was a waiver of all amendable defects in the bill so far as these defects may have affected the xn’opriety of an order appointing a receiver—of every objection to the proceeding save only that the court had not jurisdiction to make any order at all in the premises; but, as we have in effect said, the bill was sufficient to invoke the power of the'court in the premises. The bill has grave defects, cannot be maintained over defendant’s
Affirmed.