130 Mich. 606 | Mich. | 1902
In September, 1897, the complainant entered into a contract with the Arc Welding Company and the Welded-Barrel Company, by the terms of which said companies agreed to employ the complainant for a period of three years as general superintendent. In Jan
After the appointment of the receiver, complainant amended his bill, making Charles L. Coffin and Cyrus E. Lothrop parties defendant, as stockholders in the defendant company. Warren L. Beckwith, who also subscribed to the capital stock of the company, was not made a party defendant, for the reason that he was a nonresident of the State, and not within the jurisdiction of the court. The '.amended bill sets up that the defendant company was organized to take over the business of a certain other corporation, known as the Welded-Steel Barrel Company; that in fact the arrangement by which they were to take over the business of this corporation fell through; and that no assets were in fact paid in to the defendant company, although the defendants Coffin and Lothrop, together with Beckwith, subscribed capital stock. The bill prays, in addition to the prayer contained in the original bill, that said Coffin and Lothrop may be directed to pay over to the receiver theretofore appointed in the case, or to such receiver as thereafter might be appointed by the court, the amounts due from them, and each of them, on account of their unpaid subscriptions to said capital stock, in amounts sufficient to meet the claims of complainant and such other creditors as might be entitled to join with the complainant.
“1. That the complainant is not entitled to maintain a bill of complaint against this defendant to recover a subscription to the capital stock of said Welded-Barrel Company, even if such subscription were in fact made.
“2. That said bill of complaint is exhibited against this defendant and other persons therein named as defendants thereto for distinct matters and causes, in several whereof, as appears by said bill of complaint, this defendant is not in any manner interested or concerned, and that said bill of complaint is altogether multifarious.”
These demurrers were overruled by the court below, and Coffin and Lothrop appeal.
It is urged in support of the demurrer that, whether the complainant had the right to join the two defendants, Coffin and Lothrop, in the original bill, or not, it was not competent to bring them in by amendment to the bill after the receiver had been appointed; that 'the proper proceeding would be for .the receiver himself to institute the proceeding against these defendants in the interests of all the creditors. It might be sufficient to say that, under Chancery Rule No. 9 a, these defendants are not in position to raise this question. This rule now requires that the demurrer shall state the special reasons, in matters of substance, in a general demurrer, as well as matters of form in a special demurrer. This rule practically renders obsolete the practice of assigning causes of demurrer ore tenus. The objection to this bill, as set out in the demurrer, was not as to the order of proceeding, but was to the effect that the complainant could not, in any case, maintain such a bill against the defendants.
But on the merits we think the learned circuit judge reached the correct conclusion. Under our statute (3 Comp. Laws, §§ 9760, 9769, 9773), it is proper to join stockholders in a proceeding of this nature. See Hulbert v. Detroit Cycle Co., 107 Mich. 81 (64 N. W. 950); Peninsular Sav. Bank v. Black Flag Stove-Polish Co., 105 Mich. 535 (63 N. W. 514).
The order overruling the demurrers will be affirmed, with costs of this court to complainant, and the cause remanded for further proceedings.-
