Willmann v. Walsh , 96 Conn. 79 ( 1921 )

Under the demurrer the essential question for decision was whether the possession of the plaintiffs of the property of the Derby Manufacturing Company was the custody of the law.

The plaintiffs were trustees in liquidation of the company, with such relation to the property as proceedings under the General Statutes, §§ 3447 and 3448, created.

The plaintiffs claim that by such proceedings they became receivers of the court in relation to the property of the corporation, and hence that the property came into the custody of the law.

The directors of a corporation, acting as trustees in liquidation under General Statutes, § 3447, only, are obviously not receivers or officers of the court.

If such trustees, in the exercise of their discretion, make application to the Superior Court under § 3448, they do not thereby change their relation to the property of the corporation, they are still merely trustees in liquidation, and not officers of the court holding the property in the custody of the law.

There are provisions in the statutes and an absence of provisions relative to the winding-up proceedings by trustees under §§ 3447 and 3448, which clearly indicate that it was not the legislative intent to make them receivers by the enactment of § 3448 of the General Statutes.

Under §§ 3448, 3449 and 3450, the trustees may, in their discretion, secure an order of court limiting a time for the presentation of claims. But if a claim so presented is disallowed, the creditor, without the necessity of securing the permission of the court, must begin an action to enforce the claim within four months after disallowance. This course of proceeding differs radically from that pursued upon the disallowance of a claim in a receivership.

Section 3448 of the General Statutes provides that if trustees in liquidation under § 3447 bring an application to the Superior Court for the limitation of time within which claims must be presented, they shall still proceed to wind up the affairs of the corporation in accordance with the provisions of § 3447.

The provision of General Statutes, § 3450, permitting a creditor, pending the winding-up proceedings of trustees in liquidation, to secure the appointment of receivers of the corporation in liquidation, would be a useless provision if the trustees were already receivers and subject to the ordinary power of the court to remove its receivers for good cause shown.

There is no provision in the statutes relating to trustees in liquidation providing that they shall furnish bonds as is required of receivers by General Statutes, § 6082.

The trustees under this section are not, by their application to the court to limit a time for the presentation of claims, made, by that act, receivers of the corporation. They are still to wind up the corporation in accord with § 3447, but they may secure direction from the court in the same manner as if they were receivers.

Furthermore, it is hardly conceivable that it was the legislative intent, by the enactment of § 3448, to permit the directors, acting as trustees, at their discretion, to convert an entire board of directors into a board of receivers of the Superior Court, with the unnecessary expense thereby imposed upon the corporation, and hence, possibly, upon the creditors.

The winding-up proceedings of a corporation under §§ 3447 and 3448, although under the direction of the court, are not the formal proceedings of a statutory receivership, but are informal proceedings which do not bring the assets of the corporation into the custody of the law. The proceedings are similar to those considered in In re Litchfield County Agricultural Soc.,91 Conn. 536, 100 A. 356.

There is no error.

In this opinion the other judges concurred.