124 Ga. 371 | Ga. | 1905
(After stating the facts.)
Generally,, where it is desired that a receiver shall bring suits, application is made to, the court of his appointment, setting out the grounds for suit, and upon proper showing the court passes an order giving direction to the receiver. It is not altogether usual to have the question of whether there is a liability on the part of stockholders, which should be enforced by a suit to be brought by the receiver, finally passed on in limine by an auditor,, under an intervention filed with him, before actual' suit by the receiver or by the parties, and without prayer for a judgment against any special persons, and to have the court thus decree that a liability exists, as plaintiffs in error seem to desire. Their exception is to a refusal to so hold. Some of the holders of the stock were themselves in-tervenors on other grounds, and were thus before the auditor, while others were not. Neither by invoking an amendment of the order of reference or an order construing it and giving direction to the auditor, nor by exception to the auditor’s report, have these unsecured creditors who brought the case to this court raised the question in the trial court. The parties who filed the bill of exceptions seem to have taken their chances upon this mode of procedure, and we are not prepared to say that, as to them, the court.' erred in the ruling which he made. We do not wish to be understood as in any manner modifying or changing the ruling made in Allen v. Grant, 122 Ga. 552. What we hold is, that, under the special facts of this case, the plaintiffs in error are not entitled to a reversal.
Judgment affirmed.