92 Kan. 835 | Kan. | 1914
July 10, 1912, Kreitzer and Roll filed a petition against the Monarch Portland Cement Company, alleging, among other things, that they were owners of 907% shares and 758 shares respectively of the capital stock of the defendant, a Kansas corporation capitalized at four million dollars, two million being common and two million preferred stock; that the company was the owner of property worth from one to one and one-fourth million dollars, that financial depression and overproduction of cement with unreasonable competition had caused the defendant to operate its plant for the past two years at a loss of more than $500,000; that with the preferred stock went an agreement called “Special Contract,” entitling the holder to an amount of free cement equal to the face value of such preferred stock, which contract amounted to an agreement to pay an unearned dividend and was ultra vires and void; that under such contract cement amounting to $180,000 had been withdrawn; that the taxes for the year 1911 of more' than $9000 were due on real estate which would be sold unless paid; that the company owed unsecured creditors about $60,000 past due; that attachment suits were threatened which would endanger the solvency of the company; that there were outstanding mortgages of $39,100 and the company was in imminent danger of insolvency, and would become insolvent and the creditors and stockholders caused great loss unless protected by the court. The prayer was for the appointment of a receiver to take charge, marshal assets, sell off property, liquidate the debts, preserve the plant intact and continue business under the directions of the court.
The answer, signed by William Keith, attorney for the defendant, was an admission of all the allegations contained in the petition, a consent to a speedy trial and a confession that a receiver should be appointed as
The principal errors now urged are the appointment of a receiver, the order to sell the property, and the decree of dissolution and distribution. Certain other complaints touching rulings on evidence and errors occurring at the trial are found to be without sufficient merit to warrant separate consideration.
It is argued that without an actual showing of insolvency the court was not authorized to appoint a receiver, and that without statutory authority it was without jurisdiction to decree dissolution. It will be observed that the petition alleged imminent danger of insolvency and a condition of affairs said to require the protection of the court for the benefit of the creditors and stockholders, one of the causes of this condition being the unlawful “special contract” attached to the shares of preferred stock. Not only were all of the allegations of the petition expressly admitted by one of the present intervenors as attorney for the company,
Neither can it avail them to. urge error in decreeing the very dissolution which the stockholders had brought about. No question is made that the stockholders, by a two-thirds vote, had the power to do this (Gen. Stat. 1909, §§ 1714, 1727), and having exercised such power, and then through the officer of the court in charge of the assets having requested or suggested a decree of dissolution, a stockholder who was fairly outvoted has no standing to question the effectuality of such dissolution; and whether or not the court had jurisdiction to enteí a decree in accordance therewith, such a decree was entered and was recognized and became an accomplished fact. Hence it is unnecessary to inquire as to the power of the court to appoint the receiver or the validity of its order to sell the assets, for these matters, like the alleged errors as to denying the petition of the intervenors and the admission of evidence touching the stock holdings, have now become moot, and whatever view we might take of them would be merely academic so far as they could affect the pres
The judgment is affirmed.