138 Ga. 120 | Ga. | 1912
A petition was brought in the name of T. 0. Hathcock, as the duly appointed receiver of Rigbers Ice Cream Company, alleged to be a corporation, against four named defendants, alleged in the petition to be the persons who organized and transacted business in the name of said corporation. It-is alleged in the petition that while said corporation was organized with a miuirmim capital stock of $20,000, none of said stock was subscribed and not exceeding $1,000 was paid in by said defendants with which to carry on business; but that said defendants, doing business as a corporation, transacted business and incurred debts to the amount of more than $1,300, due to several named creditors; that said
Under the ruling made in the case of John V. Farwell Co. v. Jackson Stores, 137 Ga. 174 (73 S. E. 13), the general demurrer to the petition in this case should have been sustained. The receiver was but the active officer of the corporation to collect the assets and administer them for the benefit of the creditors of the corporation. “Persons who organize a company and transact business in its name, before the minimum ■ capital stock has been subscribed for, are liable to creditors to make good the minimum capital stock with interest.” Civil Code, § 2220. The liability imposed by this code section is to the creditors directly; and is not an asset of the' corporation which can be collected and administered by a receiver of the corporation. It will be seen that we differ with the Court of Appeals in regard to this question, as decided in the case of Walters v. Porter, 3 Ga. App. 73 (59 S. E. 452). The ruling there made upon the question which is common to that case and the instant case was based upon the decision in the case of Moore v. Ripley, 106 Ga. 557 (32 S. E. 647), where it was held: “When a' banking corporation has been shown to be insolvent, and its assets placed in the hands of a receiver, and in pursuance of an order of the court the receiver undertakes to collect by suit the liability of the stockholders for the payment of the debts of the bank as fixed by the statute, all of the stockholders so liable may be joined as defendants in one action.” The writer of the opinion through whom the court spoke in the ease of Walters v. Porter, supra, apparently overlooked the difference between the case which he had in hand and the case upon which he relied, that is, Moore v. Ripley, supra; for in the case last cited the Supreme Court was dealing with the right of a receiver of a corporation to recover in á suit against a stockholder; and while this court pointed out that the liability fixed by the act of incorporation was in that case to the creditors and not .to the corporation, it also distinctly pointed
Judgment reversed.