108 Ga. 168 | Ga. | 1899
James Harp, C. S. Wallace, F. C. Hand, George W. Feagin, .and S. C. Stallings brought a petition, praying for equitable relief, against the Abbeville Investment & Construction Company (hereinafter referred to as the Construction Company) and R. V. Bowen, alleging, in substance, as follows : The Construction Company is indebted to James Harp $-upon a contract under seal, to C. S. Walton $42.50, besides interest, on a judgment, to F. C. Hand $200, besides interest, on an account for services as civil engineer, for which suit is pending,-to George W. Feagin $359.38, besides interest, on account for services as civil engineer, for which suit is pending, to S. C. Stallings $55.90, besides interest, on a judgment, and to W. A. Coble $57, besides interest, on a judgment. On April 23, 1890, the Construction Company made a contract with the Abbeville & Waycross Railroad Company (hereinafter referred to as the Railroad Company) to construct a railroad from Abbe-ville in Wilcox county to a designated point in Irwin county, for the consideration of $10,000 per mile in bonds of the Rail
On April 21, 1892, the Trust .Company (the trustee in the deed of trust executed by the Railroad Company), suing for the use of Paulk, Henderson & Company, Lasseter, Ham & Company, R. V. Bowen, Drew & Brothers, S. N. Mitchell, J. D. Maynard, and the Construction Company, filed a suit, alleging that there had been a default in the payment of the interest coupons on the $216,000 of bonds of the Railroad Company, which had been deposited with the Trust Company as collateral security for the Levis & Company debt in the manner above explained, and alleging that the Railroad Company was unable to pay its debts, and praying for the appointment of a receiver. Under this proceeding R. Y. Bowen has been appointed receiver. Plaintiffs had been informed that a defense would be made to the suit just referred to, but soon after the suit was filed negotiations for an amicable settlement of all disputes between the two companies were commenced, and while these negotiations were pending the Railroad Company refrained from filing any defense. In June, 1892, the owners of a majority of the stock in the Railroad Company sold their stock in the same to Paulk, Henderson & Company, Lasseter, Ham & Company, Drew & Brothers, and R. V. Bowen, the consideration for the sale being eleven of the bonds of the Railroad Company which were to be issued as first mortgage bonds, bearing interest from July 1,1892, each bond to be indorsed by the parties above named, who were at that time owners of a large majority.of the stock of the Construction Company and had control of the same. R. V. Bowen has acquired the interests of the other parties named, and now owns a large majority of the stock
The defendants filed a demurrer containing the following grounds: (1) There is no equity in the petition. (2) The petition shows on its face that the Construction Company is already in the hands of a receiver. (3) No order of court was obtained authorizing suit against the receiver referred to in the petition. (4) AYhen the petition was filed the Construction Company had ceased to do business. (5) The petition does not show that plaintiffs represent one third of the unsecured indebtedness of the Construction Company. (6) There is no averment that the Construction Company is insolvent. (7) There is no averment that R. V. Bowen is insolvent. (8) The claim of James Harp is barred by the statute of limitations. (9) Plaintiffs have an adequate common-law remedy.
After the demurrer was filed the plaintiffs filed an amendment to the petition, alleging, in substance, as follows: Since the commencement of the suit R. V. Bowen has bought and now owns all interests in the litigation referred to in the original petition, which were formerly adverse to him, and there is no one besides himself pecuniarily interested in the result of the cases, both sides of each case being controlled by him. Both of the suits have been finally terminated and the receiver discharged, there being now no receiver for either corporation. No part of the indebtedness due plaintiffs was paid by the receiver before his discharge. R. V. Bowen, although restrained by an order in the case “ from disposing of any of the bonds referred to in the petition, and from collecting or enforcing them in any way,” has received a sum realized from a sale of the railroad under the suit of the Trust Company, and he has
It does not appear that any objection was made to the allowance of the amendment to the plaintiffs’ petition; the defendant simply demurring to the petition as amended, and urging, as reasons why the case in this condition should be dismissed, the grounds of demurrer which had been filed to the original petition, and one additional ground which related solely to the averments of the amendment. It was contended in the argument here, that the case was properly dismissed upon that ground of demurrer which set up that, as it appeared from the allegations in the petition that the assets of- the Construction Company were in the hands of a receiver appointed by the court in which this case was pending, the plaintiffs’ petition being one to enforce their equitable rights in these assets, they could not file an independent petition asking for the enforcement of such rights, and that the averment in the amendment, that the case in which the receiver had been appointed had terminated and the receiver discharged, was insufficient because the same was not supported by proper exhibits attached to the petition showing the order, judgment, or decree disposing of the case. It is true that section 4903 of the Civil Code declares that, “ Where property has been placed in the hands of a receiver, all persons properly seeking to assert equitable rern
In Cleveland v. Chamberlain, 1 Black’s Rep. 419, the rule laid down in Lord v. Veazie, supra, was applied “to a case where the appellant becomes the sole party in interest and dominus litis on both sides.” Mr. Justice Grier in the opinion says: “ This appeal must be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. By the intervention of a friend he has purchased the debt demanded by Cleveland in his bill, and now carries on a pretended controversy by counsel, chosen
It would seem, therefore,, if the case had stood upon the averments of the original petition, that the ground of demurrer setting up, in effect, that the plaintiffs in that petition should have asserted their rights through the case already pending against the Construction Company, was not well taken. It appears from the averments iu the amendment that that case is no longer pending, and therefore it will not be necessary to
Should the petition have been dismissed upon any other ground? That there was equity in the petition can not admit
Judgment reversed.