Beck v. Henderson

Blandford, Justice. In a bill filed by Lyon, McLendon & Company against the Griffin Monticello and Madison Railroad Company, there was an award made, by which it was found that the railroad company was indebted to Lyon, McLendon & Company a large sum for work done for said railroad company. The chancellor decreed on said award, and appointed the plaintiffs in error receivers, with power to sell the railroad and all its franchises. By a subsequent decree, the receivers were authorized to bring suit on all claims due the corporation for unpaid stock or otherwise. This supplemental decree was made by S. C. McDaniel, •judge pro hac vice. The presiding judge being disqualified, he was named by the clerk of the superior court. This action was brought by the receivers against Henderson upon a promissory note given to the railroad company for a part of his subscription to the same as a stockholder. The declaration alleged the foregoing facts, and also that the road and franchises had been sold, and there wat a large outstanding indebtedness on the part of the railroad company, and the suit was brought for the benefit of the creditors of the railroad company. The defendant demurred to the declaration, which, was overruled by the [369] court, and this ruling was excepted to by defendant pendente lite. The defendant then filed various pleas, all of .which the plaintiffs demurred to, and they were stricken by the court, except the pleas of the general issue, and that there were no debts due by the railroad company, and that the corporation had ceased to. exist. To this ruling the defendant excepted, and by cross-bill assigns error thereon. The plaintiffs tendered and read in evidence the note set out in the declaration, and tendered and offered to read in evidence the original and supplemental decrees, by which the plaintiffs were appointed receivers, and were authorized to bring suit on the note. This evidence was objected to by the defendant, first, because the decrees .were not accompanied by a copy of the proceedings upon rwh'ich the decrees were based; and second, because S. 0. McDaniel, Esquire, the judge pro hae vice, had no authority to render the supplemental decree. The court sustained this objection and ruled out this evidence, and the plaintiffs excepted and assign this ruling as error. Thereupon, upon motion of defendant, the court awarded a nonsuit, and to this the plaintiffs excepted and assign this judgment as 'error. So the plaintiffs bring the case here by original bill of exceptions, and the defendant comes by exceptions pendente lite and cross-bill of exceptions. 1. We are of the opinion that the decrees offered in evidence are sufficiently intelligible without being accompanied by the bill, answers and exhibits and other proceedings had in the case, and when the decree is so distinct and certain as to be understood without reference to the pleadings and other proceedings, the same need not be attached to the decree. See the case of Tarver vs. Colquitt, 75 Ga., 818, in which case this point was directly ruled. 2. The parties in the case of Lyon, McLendon & Co. vs. Griffin, Monticello and Madison Railroad Company not agreeing upon some person to preside in said case, the presiding judge being disqualified, it was competent for [370] the clerk to name a fit and proper person to preside; and this was right, although the parties had not tried .or'made any effort to agree. So we think that the court committed error in refusing to allow the decrees to be put in evidence. 3. The judgment of'nonsuit was" equally erroneous. So these judgments must be reversed. 4. As to the exceptions pendente lite and the cross-bill, it must be remembered that this action is brought in behalf of the creditors of a defunct corporation and not by the corporation against a stockholder. The pleas stricken by the court could not apply to a case like the present. All the property of a corporation which has ceased to exist, and assets of every description, constitute a fund for the payment of its debts. Code, §1688. Subscriptions of stock may be called in to satisfy creditors, and the courts will compel the stockholders to pay up their unpaid stock for the benefit of creditors, and such stockholders will not be heard to set up any defence as to fraud practiced on them in the organization or acts of the corporation, where such corporation has held itself out to the world and contracted debts on the faith of its proper organization. Where such stockholder has stood by and interposed no objection, he is bound. 8 Ga., 468; Ib., 504; 3 Id., 409; 56 Id., 195; 8 Id., 498; 56 Id., 191; 57 Id., 314; 65 Id., 650; 67 Id., 145. So we think that the pleas were properly stricken by the court. We see no errors in the rulings complained of by defendant. Judgment reversed on main case and'affirmed on cross-bill of exceptions.