11 S.D. 559 | S.D. | 1899
In conformity with the complaint of a stockholder on his own behalf, ‘ ‘and all others similarly situated, ” alleging that the defendant corporation owns property, the value of which is greatly in excess of its liabilities, and which the managing officers and principal shareholders, made defendants herein, are sacrificing by fraud and mismanagement, the ) court entered judgment; upon a referee’s findings of fact and conclusions of law, decreeing that such officers be removed, the corporation dissolved, and a receiver appointed to wind up its corporate affairs. This appeal is by the defendants, and the power of the court to thus consummate the dissolution of a corporation is the only point requiring notice. At common law, a corporation was dissolved only by the death of all its members; the legislative enactment; by a surrender of its charter, accepted by the government; or by forfeiture of its franchise, effected by the judgment of a competent tribunal on a direct proceeding in the name and on behalf of the state; and at the suit of a private person no court had jurisdiction in the premises. Upon the theory of a contract between the state and the corporators, Chancellor'Kent says: “There are two modes of proceeding judicially to ascertain and enforce the forfeiture of a charter for default or abuse of power. The one is by scire facias, and that process is proper where there is a le_gal existing body, capable of acting, but who have abused their power,
It therefore becomes necessary to examine the statute in order to ascertain whether the circuit court had any authority to render the judgment appealed from.' Under Comp. Laws, § 5015, a receiver may be appointed only “in cases where a corporation has been dissolved, or is insolvent, or is in imminent