Lasley v. Walnut Cove Mercantile Co.

Hoke, J. Our statute on corporations, Revisal, cb. 21, sec. 1196, provides for involuntary dissolution of a corporation at tbe instance of tbe corporation itself- or of any stockholder or creditor or of tbe Attorney-General of tbe State. 1. For tbe abuse of its powers to tbe injury of tbe public or of tbe stockholders or of its creditors or debtors. ' 2. For nonuser of its powers for two years or more consecutively. 3. When it bas become insolvent or shall suspend its ordinary business for want of funds or be in imminent danger of insolvency. 4. Conviction of a criminal offense if such offense be persistent. Where, on facts presented, tbe court bas power, under tbe statute, to dissolve a corporation for tbe reasons stated, both in tbe exercise of its general equitable jurisdiction and by tbe express terms of tbe law, cb. 21, sec. 1204, tbe judge bearing tbe matter, according to tbe course and practice of tbe court, “bas jurisdiction of all questions arising in tbe proceedings, and to make such orders, injunctions, and decrees therein as justice and equity shall require, and at any place in tbe district. “In tbe present cause, properly constituted, it bas been made to appear and tbe judge bas found that tbe defendant corporation bas not attempted to carry on its corporate business since 1912. Tbe case, there *577 fore, comes directly witbin the provisions of the statute, and no reason is alleged or shown why the dissolution should not be had as prayed for in the complaint. “It is urged for defendant that, under the provisions of a subsequent statute, ch. 147, Laws 1913, an application of this character can be entertained only at the instance of stockholders owning one-fifth of the paid-up stock,” etc., but a perusal of the law in question will show that it is intended to control and regulate suits for the dissolution of a corporation doing business as a going concern, and by reason of the fact that they have not earned for three years next preceding the filing of the petition in net dividend of 4 per cent, or who have not paid a dividend for six years, and clearly has no application to an action to dissolve a corporation for nonuse of its powers, the case presented on this record. Again, it is insisted that plaintiff, a stockholder, cannot maintain the present suit because he has not shown or alleged that he first made application to the directors or management to take action in the matter, citing Merrimon v. Paving Co., 142 N. C., 539, and other cases. The principle approved in these decisions is recognized as to suits , concerning corporation management, to collect corporate claims, or, in some way, to enforce or regúlate corporate action, but has no application to a suit to dissolve a corporation for nonuser of the powers where, as in this instance, the right to proceed is conferred on the individual stockholder by express provision of the statute, and without regard to the amount of his holdings. It will be noted that, in addition to the principal judgment providing for a dissolution, there has been an order entered appointing a commissioner to make sale of the property. There is doubt if the validity of this order is presented in the case on appeal. The judgment, however, appears in the record, and as it also appears in the complaint or affidavit of plaintiff that a creditor of the corporation has a debt of $3,000 and more, and perhaps others secured by deed of trust on all the real property of the corporation, and constituting its principal assets, which antidates the institution of the present action, and that the trustee had advertised for sale under the deed, we consider it well that the order heretofore issued from this Court staying present action of said commissioner, shall be continued till the creditor and his trustee shall be made a party and afforded opportunity to be heard. On the question directly presented we find no error, and, with the modification suggested, the judgment of the lower court is Affirmed.