103 Ill. 472 | Ill. | 1882
delivered the opinion of the Court:
The bill in this ease was brought by stockholders in the St. Louis and Sandoval Coal and Mining Company, against the corporation and other stockholders in the company. One of complainants, Seymore, is a creditor, and another, Main, is a director of the corporation. It is conceded the St. Louis and Sandoval Coal and Mining Company is a corporation existing under the laws of this State, and was organized under the general law of 1872. It is alleged in the bill the directors of the company are all residents of the State of Missouri, except complainant Isaac Main; that the corporation has contracted large indebtedness for sinking a shaft on grounds purchased for that purpose by the company, and for other jrarposes; that the corporation has become wholly insolvent; that the directors were fraudulently mismanaging the affairs of the corporation; that the company has ceased to prosecute the work for which it wa's organized; that it is useless for the company to attempt to resume business, on account of financial embarrassment, arid the prayer of the bill is, the affairs of the corporation should be wound up, • that a receiver be appointed, and the property of the corporation be sold tojpay its indebtedness, and the “corporation dissolved and for naught esteemed in law. ”
The only service of process on the corporation was made by leaving a copy of the summons with “Isaac Main, a director of said company, the president, clerk, secretary, superintendent, general agent, cashier and principal of said company not found. ” Other defendants were all either actually or constructively served with process. No one appearing for the corporation, a default was entered, and a decree pro covfesso rendered against it, as well as against all other defendants not answering. The court found the allegations of the bill substantially true, and entered a decree dissolving the corporation, and appointed a receiver to take charge of its property for the security of its creditors and others interested in it, and continued the cause, that its decree might be executed. The corporation has alone sued out a writ of error in the ease from this court, and defendants in error come and move to dismiss the writ of error for reasons assigned, none of which are tenable. It sufficiently appears counsel has authority to prosecute the suit in this court on behalf of the ’ corporation, and by the provisions of the Practice act, any one of two or more ■ parties to a suit, either at law or in equity, may sue out a writ of error. As respects the point made, a portion of defendants were allowed and perfected an appeal in the ease to the Appellate Court for the Fourth District, that can make no difference. It is a case where this court has jurisdiction, in the first instance, to hear the cause, because a franchise is involved in the litigation, and under the Practice act the writ of error must be sued out, if at all, by the corporation from this court. The prayer of the bill is, that the affairs of the corporation be wound up and the corporation itself dissolved, and the decree is to the same extent. It is, therefore, obvious a franchise is involved in •the litigation.
Considering the errors assigned, it will only be necessary to notice the first of the series, viz., the service on the corporation was void because Main, the director with whom the summons was left for service upon the corporation, was one of complainants. This court has had occasion more than once to decide a party to the suit can not serve his own writ, and in Lee v. Fox, 89 Ill. 226, it was held, a petitioner could not serve the notice required by law to be given to the opposite party, and as such service was void, the court failed to obtain jurisdiction in the cause. Between the case cited and the one at bar there is a close affinity. Here the only service on the corporation was made by leaving a copy of the summons with Isaac Main, a director of the company, who was himself a complainant. On the principle of Lee v. Fox, the service of the defendant by leaving a copy of the summons with a complainant in the suit, although a director in the company, is void, and hence gave the court no jurisdiction of the corporation. It is not a case of mere defective service, as in Wayman v. Crozier, 35 Ill. 156, which the practice requires shall be pointed out in the trial court or it will be deemed to have been waived. The service being void, advantage may be taken of it on error as well as in the trial court.
The merits of the case, as made by the bill, will not now be considered. That can be better done when the corporation shall have made known its defence. But on the face of the bill it would seem to be a clear case for the appointment of a receiver—a necessary step under the facts stated, if true, to the preservation of the property of the corporation for the benefit of the creditors and stockholders interested in it. That part of the decree of the circuit court appointing a receiver, as it was done in open court when the court had jurisdiction of a part of defendants, will be permitted to stand, and the residue of the decree will be reversed, and the cause remanded for further proceedings.
Decree reversed in part and in part affirmed.
