154 N.C. 421 | N.C. | 1911
Plaintiffs allege that they contracted to sell to the defendant, Kinston Spinning Company, what is known as
The defendant denied the material allegations of the complaint, and affidavits and exhibits were filed by the respective parties, for the consideration of the judge, upon the application for the appointment of a receiver.
At a hearing before Hon. O. H. Guion, a temporary receiver was appointed, and the cause afterwards came before Hon. O. H. Allen, who upon the pleadings and proof found as a fact that plaintiff had shown an apparent right to the property, the subject of the action, which is or should be in the possession of the defendant, and that the property and the “rents and profits” thereof are in danger of being lost, the value of the Throwing Machinery Plant being $15,056. He also found as a fact that the Kinston Spinning Company is insolvent and is indebted to the plaintiff, its creditors, as above set forth, and that the Summit Silk Company, the G. W. Graham Company, plaintiffs in this action; the Kinston Spinning Company and Kinston Real Estate Company are all corporations created and existing under the laws of the State of New Jersey, the two last-named companies having real and personal property in this State. The Kinston Real Estate Company was, on motion of the plaintiffs, made a defendant, because, as the judge found, it has or claims an interest in the subject of the controversy. Upon these and other findings not material to be stated, his Honor, Judge O. H. Allen, made the receivership permanent, and invested the receiver, E. M. Land, with all the powers conferred by the statute (Revisal, ch. 41, sec. 846 et seq.), and especially with those conferred by chapter 21, entitled “Corporations,” and subchapter 13 (sec. 1219 et seq.), with special directions to advertise for creditors to come in and prove their claims, and for all parties, including stockholders, interested in the assets of the defendant, to come in
The judge, at the request of the Spinning Company, reconsidered his findings of fact, but declined to change the same, and we will not do so, there being ample evidence to support them. The objections urged by the appellant to the judge’s order are:
1. That the plaintiffs had a complete and adequate remedy at law by an action for the recovery of the specific property, and damages, with the ancillary remedy of claim and delivery.
2. That a general receiver should not have been appointed, but only a special receiver to hold and preserve the property pending the litigation.
We do not1 understand it to be necessary, since the change in the constitution of our courts, the blending of the two systems of law and equity and the radical, though useful and practical innovations in pleading and in the practice and procedure of our courts, that a plaintiff who resorts to an equitable remedy for the protection of a right or the redress of a grievance should first' reduce his claim to judgment and exhaust his legal remedy by execution or other appropriate process, as under the old system. Wo have held that this is not required to be done, but that the right will be administered and full relief given in one action. Bank v. Harris, 84 N. C., 206; Mebane v. Layton, 86 N. C., 574; McLendon v. Comrs., 71 N. C., 38. The subject is so fully discussed in Bank v. Harris that we need not longer dwell upon it.
Our statute is so broad and comprehensive in its provisions regarding the appointment of receivers that it is not necessary
The last two cases just cited go beyond what is necessary for us to decide in this case, and hold that the term creditor includes not only a person who has an enforeible demand arising out of contract, but also one who has such a claim sounding in tort. In Rosenbaum v. Credit System Co., 61 N. J. Eq., 543, it was held that the term “creditor” found in the legislation relating to insolvent corporations and the administration of their assets by receivers is not used in a narrow, restricted or technical sense, but embraces within its proper and natural meaning any one who is entitled to recover an amount liquidated or unliquidated, of the insolvent, as damages, for the breach of an express or implied contract. Anderson v. Anderson, supra. Black’s Diet., p. 299. A debt is something due from one person, the debtor, to another called the creditor, and may be created by simple contract or evidenced by specialty or
The defendant objects that the court had no jurisdiction to proceed in this' suit against the defendants because they are foreign corporations, creatures of the laws of New Jersey. The precise question was considered in Holshouser v. Copper Co., 138 N. C., at p. 254, in the appeal of the State of New Jersey, and we decided contrary to the present contention in this case. We there said: “ ‘If each Government in cases of insolvency should sequester and distribute the funds within its own jurisdiction, the general result would be favorable to the interest of creditors and to the harmony of nations. This is the rule adopted in all cases of administration of the property of deceased persons; and there is no real difference between the principle of those cases and of cases of bankruptcy.’ . . . ‘The municipal laws of a country have no force beyond its territorial limits, and when another Government permits these to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no, I injury is inflicted on her own citizens; otherwise, justice would be sacrificed to courtesy; nor can the foreigner or stranger: complain of this. If he sends his property within a jurisdiction different from that where he resides, he impliedly submits it to the rules and regulations in force in the country where he places it. What the law protects, it has the right to regulate.’ So it is in this case. When the Copper Company was char-; tered and permitted to migrate from its domicile and conduct’ its business in this State, where it has acquired property under the protection and operation of the local laws, its assets should in all fairness be held subject to the provisions of those laws in favor of persons who have dealt with it here as a domestic corporation, which is virtually its true character, though in law it is considered as a corporation of New Jersey. Goodwin v. Claytor, 137 N. C., 224.” The property of the Spinning-Company is in this State and the laws of New Jersey should
We do not think the plaintiffs should .be restricted to the appointment of a special receiver, as their relief, having reference to the facts alleged in, and the general frame of, the complaint, should be of much broader scope, and must be measured, not according to the exact prayer of the complaint, if it stops short of that to which the plaintiffs are entitled upon the aver-ments of the complaint, but should extend to all relief commensurate with such averments. Knight v. Houghtalling, 85 N. C., 17; Voorhees v. Porter, 134 N. C., 591.
A careful examination of the case in all its aspects leads xis to conclude that there was no error in the judgment below.
No error.