Rogers v. Haines , 103 Ala. 198 ( 1893 )

McCLELLAN, j.-

When this case was formerly here on appeal from, an order dissolving the injunction it was said, Walker, J., delivering the opinion of the court: "The complainant’s claim to recognition in the .courts of this State for the purpose of protecting and collecting the assets of the corporation found here, must be rested upon the fact, not very clearly, disclosed by the averments of the bill, that the officers of the corporation, either negligently or willfully, or in obedience to the orders of a court having jurisdiction of their persons, fail or refuse to take the necessary measures to save the assets in this State from waste or spoliation.” — 96 Ala. 586. Reaffirming this view, the rulings of the chancellor on demurrer to the bill now present the inquiry whether the bill as amended discloses such a failure or refusal on the part of the corporate officers to protect and collect the assets in this State of the corporation. The amendment in this regard, made since the case was here, is as follows: “Your orator further shows the officers and agents of said corporation have neglected to take any measures to protect and save the assets of said association from being subjected to the satisfaction of said fraudulent and unfounded claims of these defendants, and have negligently failed to take the necessary measures to save the assets of said association in the State of Alabama from waste and spoliation.” Under Rule 42 of Chancery Practice (Code, p. 818) this amendment is to ‘ ‘be considered as introduced in the bill from the time of its allowance,’ ’ and it speaks as of and from that time and not with reference to the time of bill filed. So considered, and construing the averments of the amendment as unfavorably to the complainant as its terms will reasonably admit of, it does not aver that at and prior to ■the filing of the bill the officers and agents of the corporation had negligently failed to take the steps necessary to the conservation of the company’s assets, so that at the time of instituting the suit the receiver had power and authority to sue by reason of the then existing negligence of the officers of the corporation ; but only that at the time the amendment was made — long after the bill filed — such negligence had intervened as would have authorized this suit had it been cotemporaneous with the institution thereof, or would have authorized the suit at the time of the amendment. The bill as amended, in other words, fails to show the existence of a state of facts at the time it was filed, the averment .of which was essential to the complainant’s right to sue at all; and assignments of demurrer to the amended bill, numbered 5, 6 and 7 were, therefore, properly sustained. In the absence of such averment, a foreign receiver of a foreign corporation, it not appearing that the corporation had been dissolved or otherwise itself disabled to bring the suit, is without capacity to sue here for assets or for the protection of assets of the corporation; and hence assignments of demurrer numbered 1, 2, 3, 4, and 5 to the original bill were well taken.

The bill and'the exhibits.thereto show that the judgments sought to be enjoined were rendered before the clay at which the defendant was summoned to appear and make defense to the several actions ; and it does not appear by said judgments that the fact of Vary’s agency, he being the person upon whom service was made as the agent of the defendant corporation, was proved as an essential condition precedent to the rendition of judgment by default. This fact of rendition of judgment before the day set for the appearance of the defendant, and this omission to show by the judgments that proof of Vary’s agency was made, appearing on the face of the papers in the justice court, the corporation itself had an adequate remedy at law for the alleged wrongs and injuries in the common law writ of certiorari. Amer. Press Asso. v. Independent Publishing Co., 102 Ala. 475.

It would not necessarily follow from this, however, that a suit of this kind could not be brought by the receiver. It might be that the receiver, not being a party to those causes, would not be let in to prosecute that writ. He was not a party.

The decree of the chancellor sustaining the assignments of demurrer upon which submission was made must be affirmed.