142 A. 293 | Pa. | 1928
Argued April 9, 1928. Plaintiff filed a bill in equity against the New Schiller Building Loan Association (hereinafter called the association), its present officers and directors, and all other unnamed persons who have been its "directors, shareholders and stockholders from and after February 3, 1915." This appeal is from a decree for plaintiff. For the reasons hereinafter stated the appeal must be sustained.
The bill may be epitomized as follows: The stock of the association was issued serially, and Christian and Mary Lange had paid in a large sum on their 325 shares in three several series. On February 3, 1915, they gave notice of withdrawal, but the association denied they were shareholders and refused to pay them anything. At that time there were sufficient assets to pay them *164 and all the other shareholders and creditors. On March 23, 1915, they assigned to plaintiff their interest in those shares; she sued the association and recovered a judgment more than ten years later. This long interval was due to the directors "delaying and hindering the ordinary and due conclusion of the suit." In fraud of her rights, the directors, after the notice of withdrawal, paid the amount due to shareholders whose series subsequently matured, and that due to withdrawing stockholders whose notices of withdrawal were later given, without first paying plaintiff's claim, or setting apart a fund to meet it. The association is not now collecting any dues, but, on the contrary, has converted all available assets, and, by the unanimous consent of the stockholders, has distributed to each his or her pro rata share thereof, cancelled their stock, and filed in the court below a petition for dissolution of the association as a corporation. From the advertisement of this proceeding plaintiff first learned of the final conversion and distribution. She asked that all other creditors, if any, be allowed to intervene; that the court add to or strike out the names of all those who should or should not have been made defendants; that the directors be enjoined from disposing of the assets, books and accounts of the company; that a receiver be appointed to take possession thereof, or that they be forthwith delivered to her attorneys for safe keeping pending the suit; that discovery be made of the value of the association's assets, of its debts and liabilities, of the names and addresses of all the directors since February 3, 1915, of all the shareholders to whom money had been paid since that date, and of the sums paid to each of them, and also of the amount properly assessable against the defendant directors and stockholders, the same to be paid to the plaintiff or plaintiffs, for distribution by them, to all the creditors of the association, but particularly to the payment of the present plaintiff's judgment. *165
Likewise epitomizing the answer, we find it admits that the shares of stock in the association were issued serially, and that Christian and Mary Lange, claiming to own 325 shares, gave notice of withdrawal on February 3, 1915, but it denies that they were then or ever had been owners of the shares, which had previously belonged to their son Louis A. Lange, who, more than five years before the notice of withdrawal, had transferred them to the association in part payment of over $237,000 of its money which, as its secretary, he had wrongfully appropriated to his own use; that the shares had then been duly cancelled by the association, and thereafter no dues had been paid by any one on account thereof. The answer also averred that if any payments were subsequently made by Christian or Mary Lange, it was to their said son, who received and retained the money for his own individual benefit and purposes. It admits that plaintiff had brought a suit against the association, which they aver is still pending and undetermined, no judgment having yet been recovered therein; that after the notice of withdrawal, several series of stock had matured and been paid off, and that shareholders in other series had given notice of withdrawal and had been paid, all these payments being made by advice of counsel, under the direction and supervision of the banking department of the State, in reliance on the fact that the 325 shares had been properly cancelled. It avers that plaintiff and the Langes knew these payments were being made for the purposes stated, and yet did not object to them, nor did the Langes pay any dues on the 325 shares during the five years between their cancellation and the notice of withdrawal. It admits that at the time the notice of withdrawal was given by the Langes, there were sufficient assets to pay all the creditors and shareholders, but denies that this would have been so if their alleged claim in respect to the 325 shares had been included among the liabilities; it admits that no dues are now being collected; that the association *166 has converted and distributed the balance of its assets and has applied to the court for its dissolution as a corporation; that the officers and directors have possession of the association's books, minutes, vouchers and records, but denies that there was any intention of disposing of or destroying them; and further denies every charge of wrongdoing alleged to have been done or contemplated, and every right contended for by plaintiff.
Plaintiff filed thirteen objections to the answer, pointing out wherein she thought it was defective, and defendants moved to dismiss the bill because of her laches. She thereupon ordered the case for a hearing, and the three judges of the court below, believing they should not sit, called in the president judge of another district to hear and decide the questions raised. He did so, and filed an opinion in which he reported in favor of entering a decree nisi appointing a temporary receiver, to whom the assets, books and records of the association should be delivered, and enjoining defendants from disposing of them. This he did though no motion for a receiver or for an injunction appears ever to have been made. Defendants filed exceptions; the same president judge, sitting alone, heard argument on and dismissed them, and "directed the prothonotary to enter the decree nisi as a final decree."
It is difficult from this record to determine whether the hearing was supposed to be on the exceptions to the answer and the motion to dismiss the bill, or upon bill and answer generally. If the former, defendants would have had the right to answer over if the exceptions were sustained. Inasmuch, however, as Equity Rule 48, upon which appellants partially rely for their contention that it was the former, does not provide for the character of exceptions filed by plaintiff, and, as the court below evidently treated the hearing as one upon bill and answer, — a conclusion not clearly challenged by the exceptions thereafter filed by defendants, — we will consider the appeal as if this was the nature of the hearing. *167
When a case is so heard, every relevant averment of the answer, which is well pleaded, whether responsive to the bill or stated as an independent matter of defense, must be accepted as true, and all averments of the bill must be rejected in so far as they are denied or qualified by the answer: Mazet v. Pittsburgh,
We do not agree with defendants' contention that the trial judge ignored Equity Rules 67 to 72. On the contrary, as our foregoing résumé of the proceedings shows, he substantially complied with them except in two particulars. Nothing would be gained by considering whether or not Sherwood Bros., Inc., v. Yellow Cab Co.,
The first of the exceptions referred to is that he did not state his findings of fact and conclusions of law, *168
each grouped in separately numbered paragraphs distinct from every other finding and conclusion, and from his discussion of the questions involved, as we said was the proper practice: Taylor v. Order of Sparta,
In order to avoid a possible misunderstanding, we add that we have not decided the question of plaintiff's alleged laches. Knowing that the association was a serial one, and would, in the ordinary course of business, pay withdrawing and maturing shareholders, it is gravely doubtful whether she could be silent during all the years after she began her suit at law and not pay the penalty for her indifference, at least as respects them (Booz's App.,
The decree of the court below is reversed at the cost of appellee, and the record is remitted for further proceedings not inconsistent with this opinion. *169