Steeling Electric Co. v. Augusta Telephone & Electric Co.

LüMPKIN, J. (After stating the facts.) 1. There was no error in overruling the demurrer to the amendment of the plaintiff. The matter dealt with in it had been before the auditor, evidence had been introduced on the subject, and he had made a report touching it. The amendment simply adjusted the plaintiff's pleadings and prayer to meet the facts which had thus been considered and passed on. Cureton v. Cureton, 120 Ga. 560(2). 2. The plaintiffs in error were parties before the auditor. Evidence was introduced on the subject of the liability of the stockholders and whether it was an asset of the company. No one except Weed seems to have objected to the auditor’s making an adjudication on the subject of the liability. His counsel contended that it was not within the province of the auditor to pass on the question of liability, hut to report these claims as prima facie assets. The auditor construed the order of reference and his duty differently. So far as appears in the record, the plaintiffs in error never filed any exceptions to the auditor’s report. In the bill of exceptions it was recited, “That at this time, December 20, 1904, all of the parties who had filed exceptions to the report withdrew the same, except John W. Weed, on which day the [plaintiffs in error] joined in his exceptions by their counsel in open court and were allowed to do so by the court.” It is not stated that they filed any exceptions themselves or took any order on the subject, and we presume that this meant no more than that counsel for these parties assisted in urging the exceptions of Weed. We do not know how they could have become parties to exceptions filed by another person, after the time for excepting had passed. In the absence of anything in the record to show that this was done, we put upon the language the construction referred to above, which represents all that could lawfully have been done by the plaintiffs in error at that time. The presiding judge recited in his final decree that all exceptions were withdrawn or dismissed except those of Weed, which were overruled.' Plaintiffs in error appear to have [375] largely rested their proceeding upon that of Weed, and when he failed to except, they have undertaken to do so. It is true that they filed an amendment somewhat similar to that of Weed, after the auditor had filed his report, alleging that they had never had the opportunity to present this question in a court of law since the facts came to their knowledge. But inasmuch as evidence was introduced before the auditor and he reported on the subject, it is not easy to see how the plaintiffs in error or their counsel could have escaped knowing the facts. If they rested upon the proceeding of Weed to hold the stockholders liable, the auditor found that he was notified, before he purchased the bonds, that the company would make such a transaction, and that he must be assumed to have assented to it. Generally,, where it is desired that a receiver shall bring suits, application is made to, the court of his appointment, setting out the grounds for suit, and upon proper showing the court passes an order giving direction to the receiver. It is not altogether usual to have the question of whether there is a liability on the part of stockholders, which should be enforced by a suit to be brought by the receiver, finally passed on in limine by an auditor,, under an intervention filed with him, before actual' suit by the receiver or by the parties, and without prayer for a judgment against any special persons, and to have the court thus decree that a liability exists, as plaintiffs in error seem to desire. Their exception is to a refusal to so hold. Some of the holders of the stock were themselves in-tervenors on other grounds, and were thus before the auditor, while others were not. Neither by invoking an amendment of the order of reference or an order construing it and giving direction to the auditor, nor by exception to the auditor’s report, have these unsecured creditors who brought the case to this court raised the question in the trial court. The parties who filed the bill of exceptions seem to have taken their chances upon this mode of procedure, and we are not prepared to say that, as to them, the court.' erred in the ruling which he made. We do not wish to be understood as in any manner modifying or changing the ruling made in Allen v. Grant, 122 Ga. 552. What we hold is, that, under the special facts of this case, the plaintiffs in error are not entitled to a reversal. 3. We do not know what evidence was before the presiding judge upon the subject of Langdon, or the nature of the claim against him, [376] or whether he was solvent or insolvent, or as to the probability of realizing on a judgment against him. In regard to directing the receiver to bring suit on promissory notes or open accounts, the judge has some right to look to the interests of the estate. He is not bound to direct the receiver to involve the estate in heavy costs or expenses in suing insolvent or worthless claims. The plaintiffs in error do not appear to have shown whether there was a probability of realizing on the Langdon claim, or whether they were willing to save the estate from costs should the suit be unremunerative. The court gave the receiver some discretion in judging of the matter, and we can not say that he erred. Judgment affirmed. All the Justices concur.