264 P. 44 | Kan. | 1928
The opinion of the court was delivered by
The defendant appeals from an order appointing a receiver at the commencement of the action, which is prosecuted to dissolve the defendant corporation and to declare that. 5,465 shares of its capital stock had been issued in violation of law, that less than twenty per cent of its authorized capital stock had been paid in actual cash or any property equivalent thereto, and that the defendant is unlawfully usurping corporate.privileges in the state of Kansas and is abusing its privileges.
The petition asked that “a receiver be appointed to manage the corporate property and business of said defendant under the supervision of the court and to wind up the affairs of said defendant com
The journal entry of the judgment appointing the receiver recites that—
“It appearing to the court from the verified petition of plaintiff and the evidence introduced that the allegations in plaintiff’s petition are true and that the defendant, the Hutchinson Gas Company, was created for the use and benefit of the Cities Service Company, a foreign corporation; and that there never were any bona fide incorporators of the Hutchinson Gas Company, and that the office of treasurer of the Hutchinson Gas Company was kept and maintained in Kansas City, Mo., and that the books and records of the Hutchinson Gas Company-, excepting customers’ meter accounts, for more than six months have been kept in Kansas City, Mo.; and that the said defendant corporation is perverting and abusing its corporate privileges as aforesaid; and that a receiver should be appointed therefor to manage its corporate affairs and business under the supervision of the court; and that A. W. Eagan was a suitable and proper person to be appointed receiver of the Hutchinson Gas Company.”
There are six assignments of error, but they may be reduced to one, which is that under the evidence introduced the receiver should not have been appointed. The statement by the court that the
The petition alleged that the defendant had filed with the secretary of state an affidavit showing that the entire authorized stock of the company had been paid in property equivalent to actual cash, that the property consisted of the plant located in the city of Hutchinson, and that the property was substantially in excess of the authorized capital of the company; but the petition further alleged that the affidavit was not true.
The receiver was appointed soon after the commencement of the action and before issues were joined between the plaintiff and the defendant. There has been no trial of the allegations of the petition except such as was had when the receiver was appointed. The Hutchinson Gas Company is operating the gas plant in the city of Hutchinson, and through that plant is furnishing gas to domestic consumers in that city. Until there is some active violation of law, or some disobedience of an order of a court, a receiver should not be appointed to take charge of the property of the defendant before issue has been joined on the matters alleged in the petition and before trial has been had thereon.
“Courts are extremely reluctant to adjudge forfeitures of corporate privileges and franchises; and being vested with some discretion in proceedings brought for that purpose, will ordinarily do so only where no other adequate remedy is available.” (Syl. ¶ 1.)
In State v. Water Co., 63 Kan. 317, 65 Pac. 257, the state prosecuted an action to oust the defendant from exercising the functions and powers of a corporation under the laws of this state for failing to file with the city clerk a sworn report required by law. The court there said:
“There are adequate' and available remedies other than the forfeiture of corporate franchises. This being so, it has been frequently decided by this court that a proceeding like the present will not lie.” (p. 318.)
In Albach v. Fraternal Aid Union, 100 Kan. 511, 517, 164 Pac. 1065, the court said:
“In the facts alleged and the relief prayed for in this action the proceeding in effect is quo warranto. Except in most unusual cases, such an action can only be maintained in the name of the state by its proper legal representative —the attorney-general, or, perhaps, by the county attorney. And even if so maintained, the relief to be given is to some extent discretionary with the court. (City of Topeka v. Water Co., 58 Kan. 349, 353, 49 Pac. 79.) Where, as most likely in the case at bar, the result would be t.o wreck an institution that is doing a beneficial and humanitarian work notwithstanding some possible defects in its financial or economic structure, the state’s responsible legal representative should consider well whether such action should be instituted (The State v. Bowden, 80 Kan. 49, 56, 57, 101 Pac. 654), and the court would consider with profound solicitude whether the remedy prayed for was not worse than the evil complained of.”
A receiver should not have been appointed. It was an abuse of discretion for the court, before issues joined and before trial, to appoint a receiver to take charge of the property of the defendant.
The judgment is reversed; the order appointing a receiver is set aside; the court is directed to require the receiver to make his final report; and, upon that report being filed and approved, the receiver should be discharged from further duty.