291 S.W. 780 | Ky. Ct. App. | 1927
Appeal of Robinson dismissed; appeal of Justice affirmed.
In October, 1923, suit was brough by the officers, directors and a number of stockholders of the Elkhorn Wholesale Grocery Company, a corporation, to have a receiver appointed for the company on the ground that it was unable to meet its liabilities, that many suits against it were threatened, that a great deal of its property was perishable in its nature, and that best interests of its creditors and of its stockholders required a receivership. By an amended petition, all of the stockholders of the company were made parties either plaintiff or defendant except the appellant, G.A. Justice, who *587
was the owner of 16 shares of the preferred stock, and who through oversight was omitted from the parties litigant. The other appellant, T.J. Robinson, a director and stockholder of the company, was a party plaintiff in the suit. No creditor was made a party by either the original or amended petition. All the parties to the suit, both plaintiff and defendant, consenting, the court appointed a receiver for the company. Thereafter, under order of court, he advertised for creditors, a list of whom had also been furnished him by the company. They duly filed their claims with him, and so became parties to the suit. Civil Code 432; Combs v. Allen,
Summarizing the further proceedings had in this receivership suit, we find from the record that in due course of time all of the personal property of the corporation was disposed of by the receiver, the proceeds falling far short of satisfying the liabilities of the company to its creditors. The receiver thereupon made a report to the court, recommending that the real estate of the corporation, on which there were outstanding mortgage liens be sold, the proceeds distributed among the creditors, and the company wound up. This recommendation of the receiver seems to have been concurred in by all the stockholders except these two appellants. The court then ordered the real estate sold for the purposes recommended by the receiver. Thereupon the appellant Justice tendered and offered to file his intervening petition, in which he claimed that he owned 16 shares of the preferred stock of the company, that by its articles of incorporation it was provided that on dissolution of the company the preferred stockholders should have a first lien upon its property to secure them in the repayment to them of the par value of their stock, and that the company stood dissolved, for which reason he was entitled to enforce his lien upon all the assets of the company. At the same time the appellant T.J. Robinson tendered his amended petition, in which he set up that he was the owner of 50 shares of the preferred stock, and then the same allegation about the claimed lien to secure his investment that Justice had set out in his pleading. He asked the same relief as did Justice. On objection to the filing of these two pleadings, the court declined to allow them to be filed, and from this order Justice and Robinson appeal. *588
Robinson is and has always been a party to the suit. It is obvious that the order overruling his motion to file an amended pleading in that litigation is not a final order as to him from which he can appeal. Wilhelm v. Hendrick,
So far as Justice is concerned, in Morse v. Buskirk,
Appeal of Robinson dismissed.
Appeal of Justice affirmed. *589