Hyman Mercantile Co. v. Kiersky

Griffith, J., delivered the opinion of the court on motion. The Hyman Mercantile Company is a corporation with a capital stock of $45,000' par value. The two complainants own $11,500 of this stock, or approximately one-fourth. They filed their bill complaining that the owners of the other three-fourths of the stock were unfriendly to complainants, and that the others were participating in the mismanagement of the affairs of the company in such divers ways, specifying them, that the value of the stock would soon be destroyed. Complainants prayed that a receiver be appointed to take over all the assets of the corporation, to convert them into cash, and thereupon that complainants should have their distributive share of the proceeds in proportion to their stock ownership. There are no other complainants. The defendaxxts answered and denied every allegation as to mismanagement or which otherwise would justify the relief prayed. Oh the hearing the court decreed in favor of the complainants, appointed a receiver axxd directed the receiver to take charge and to proceed according to the prayer of the bill. Defendants demanded axx appeal with supersedeas, and called upoxx the trial judge to fix the amount of the supersedeas bond; and the judge being of the opinion, as it appears, that such a supersedeas would be controlled by Section 29', Code 19'30', fixed the amount of the bond at $90,000, or double the amount of the entire capital stock. A motion has been filed here by the defendants for an allowance of the appeal with supersedeas secured by a bond more reasonable in ¿mount and more in harmony with the justice of the situation than the disproportion *200 ately large bond stipulated by the trial judge, and the defendants invoke the provisions of Section 35, Code 1930, as being those which should be applied in the case now presented. Were complainants claiming the entire property and had recovered a decree therefor, an appeal with supersedeas would be controlled by Section 29, Code 1930. But the utmost that the two complainants could recover here would be the one-fourth, approximately, of the total of all the assets of the corporation, this total being shown to amount to $70,503.88, whence the one fourth would be approximately $18,000. It is true that a receiver would take charge of the entire property, but a receivership is not an end to be attained but is only a means to the end by which complainants’ rights in the property shall be preserved, and this right, as already shown, extends only to an approximate one fourth thereof. If, then, a supersedeas bond is given by the defendants which will secure the complainants up to the sum of $18,000, plus the margin hereinafter provided, there will be amply preserved to them, in case the appeal should fail, everything which in any event and as a matter of substantial right they could obtain were no appeal prosecuted, and we think they have no just right to demand a bond which would cover the whole property in three fourths of which the complainants have no equitable ownership. We will resort, therefore, to the provisions of Section 35, Code 1930, and will allow the appeal with supersedeas when the defendants shall give a supersedeas bond in the sum of $23,000, which is double the par value of the complainants’ stock conditioned that the principal and surety or sureties thereon shall be bound to pay unto complainants, and to no others than complainants, any loss which may happen to them as a proximate consequence of the detention of the assets of the corporation from the hands of the receiver pending the appeal in case the appeal should be unsuccessful, with costs if any, *201 but to be void iu case the appeal should be sustained, the bond to be approved in the manner as other appeal bonds in chancery are generally approved. So ordered.