Workingmen's Union Ass'n v. Reynolds , 1910 Ga. LEXIS 384 ( 1910 )

Holden, J.

(After stating the facts.) The petition does not show on its face that the suit in the name of the corporation was unauthorized by those duly empowered by the corporation to institute suit in its behalf. The presumption is that the attorney at law who signed the petition as counsel for the corporation had the authority of the proper officers of the corporation to appear and bring such suit; and this presumption can only be overcome in the manner provided for in the Civil Code, § 4423. Peoples Mutual Fire Ins. Co. v. DeLoach, 113 Ga. 802 (39 S. E. 466); Lester v. McIntosh, 101 Ga. 675 (29 S. E. 7); Dobbins v. Dupree, 36 Ga. 108.

The suit was instituted by the corporation against certain of its members and an alleged purchaser of its propertjr from the latter, charging that for the reasons stated the sale was fraudulent and made without authority, and praying that the deed be cancelled and a receiver appointed to take charge o.f the propertjg and hold its income and profits for the benefit of the corporation, and that the purchaser account to the corporation for the income and profits he had received therefrom, and also praying that the defendant' members of the corporation be required to account to it for the purchase-money received by them for the property .and that the same be decreed to be assets of the corporation free from any claim of the purchaser or of the other defendants who had appropriated the same to their own use. The corporation could not have the deed cancelled, the property placed in the hands of a receiver, and the income and rents thereof paid to the corporation, and also recover from the defendant members of the corporation the purchase-money paid to them. A suit tp cancel a deed and recover the rents, income, and profits of the property would be a repudiation of the alleged illegal sale; while a suit to recover the proceeds of such sale from the defendants to whom they were paid would be a ratification of the alleged illegal sale; and the remedies sought in the two instances are inconsistent. This, however, does not make the petition subject to general demurrer. The fact that the purchaser was not served with the petition and process, and did not appear and plead, might be sufficient to prevent a cancellation of the deed and the granting of other relief based on a repudiation of the sale, to the granting of which the purchaser would be a necessary party to the ease; but such fact would not afford a ground to dismiss the petition on general demurrer, as the allegations of the petition authorized a recovery by the corporation of the purchase-money received by the defendant members thereof, on the theory of a ratification by the corporation of the alleged illegal sale. If the sale made in behalf of the corporation, was illegal, and the corporation ratified it, or if it was legal, the defendant members of the corporation receiving and appropriating to their own use the purchase-money arising therefrom would be liable in an action by the corporation to account therefor. The court erred in dismissing the petition upon general demurrer.

Judgment reversed.

Beck, J., absent. The other Justices concur.