Daniel v. Jones , 146 Ga. 583 ( 1917 )

Hill, J.

(After stating the foregoing facts.) While the record is extensive and intricate, and the arguments of. counsel are equally so, happily the assignments of error are comparatively few, and the case when stripped of surplusage is confined to a few controlling issues. The facts of the case are liberally set forth in the foregoing statement.

1. The main question is one of jurisdiction. It is contended, that under the allegations of the 'petition as amended, and under the evidence introduced on the trial, the defendant was a fraternal benefit society, and as such was and is subject to the laws of Georgia regulating fraternal benefit societies; and that under the laws of the State the superior courts have no jurisdiction of a cause praying for the appointment of a receiver or an injunction, except on the petition of the attorney-general of Georgia. It is also insisted, that under the allegations of the petition as amended, and under the evidence, the defendant was either an insurance company subject to the general insurance laws of Georgia, or it was a fraternal benefit society subject to the laws regulating such societies; and that in either event the superior court had no jurisdiction to entertain the subject-matter of the cause, or to appoint a receiver, or to grant an interlocuory injunction, because the jurisdiction to direct, manage, and control the defendant is by law vested in the insurance department of the State, and it-appeared on the hearing that a petition had been filed and was then pending in the insurance department to investigate the defendant company.

In Fraternal Life &c. Association v. Evans, 140 Ga. 284 (78 S. E. 915), it was held that “The Civil Code, § 2869, provides that fraternal beneficiary orders or associations shall be governed by the provisions of the code relating to such orders or associations, and shall be exempt from the provisions of the insurance laws of the State.” But it is insisted that the act of 1914 (Acts 1914, p. 99 et seq.) was passed to meet the decision in the Evans case, just cited. By section 25 of the act of 1914 (p. 119) it is provided that “No application for injunction against, or proceedings for the dissolution of, or the appointment of a receiver for any such domestic society or branch thereof shall be entertained by any court in this State, unless the same is made by the attorney-general.” But it will be seen from reading section 29 of the act that it was declared that “Nothing contained in this act shall be construed to affect or apply to grand or subordinate lodges' of Masons, Odd Fellows,” etc. It was argued that this exception was unconstitutional; but no exception was taken to that effect, and that question will not be considered. Therefore the act of 1914 by its terms does not apply to the defendant, the District Grand Lodge No. 18 of Georgia, Grand United Order of Odd Fellows, etc., which was chartered by the superior court of Fulton county. Being a fraternal benefit association it could be so chartered, and did not have to be chartered by the Secretary of State as an insurance company, as contended.

The withdrawal of the charter granted by the National Order at Philadelphia did not have the effect of severing all connection between the order of Odd Fellows of Georgia under its private charter ; and the right of the private corporation chartered by the superior court of Fulton county was not abrogated or forfeited as to its control and management of the assets of the order which had been acquired by its endowment plan.

We reach the conclusion, therefore, that the superior court, and not the insurance commissioner of the State, has jurisdiction in the instant ease, a proper case having been alleged showing such jurisdictional facts.

2. Did the petition as amended make a' case which would come within the jurisdiction of a court of equity? We have already held that the insurance commissioner of the State had no jurisdiction of the ease. It was alleged, that the plaintiff and those joined with him were members of and held death benefit certificates in the order; that the domestic charter provided that the corporation should be governed by a board of directors who should manage and control its affairs; and that until January 15, 1916, when the “subcommittee of management,” a corporation under the laws of Pennsylvania, suspended two of the officers off the domestic corporation and revoked the charter, dispensation, and warrant of the District Grand Lodge of Georgia, they were the officers having authority to control the affairs and assets of the corporation. This subcommittee also adopted an order reciting that “a state of anarchy” existed in the State of Georgia in the affairs of the-defendant; it was further alleged that under the order of the committee of management there was no executive committee or officials of the chartered corporation to conserve its assets, alleged to be worth $600,000, two being suspended and three others refusing tó act; and that there was no method provided for carrying on the affairs of the corporation; and that the only way the assets could be conserved and officially distributed or utilized, and thus keep the corporation a going concern, was for the superior court, acting as a court of equity, to assume jurisdiction, etc. Without reciting all the allegations, which can be seen by reference to the statement of facts, we conclude that under the allegations of the petition as amended, which is sworn to, the evidence in the case, and all the answers of the defendants, this case is one peculiarly for a court of equity, and that the trial judge did not err in granting a temporary restraining order, and in appointing receivers to take charge of the assets of the corporation under direction of the court until officers could be legally elected to take charge of its affairs in accordance with law, and until the further order of the court, and in refusing to dismiss the petition.

3. The amended petition prays for a dissolution of the corporation, and a distribution of its assets. Under the decisions in the cases of Croft v. Lumpkin Chestatee Mining Co., 61 Ga. 465, 467, Gibson v. Thornton, 107 Ga. 545 (33 S. E. 895), and White v. Davis, 134 Ga. 274 (67 S. E. 716), a court of equity in this State can not dissolve a corporation. The statute provides how corporations may be dissolved. Civil Code (1910), § 2238 et seq.,- and acts amendatory thereof. But for the purposes of conserving the assets of the corporation, which were alleged to be going waste, etc., and keep it a going concern until officers could be legally elected and qualified, and until the further order of' the court, the case is one coming within the jurisdiction of a court of equity. Niblack on Accident Insurance and Benefit Societies, 226, §§ 110, 119; High on Beeeivers (4th ed.), § 293; 1 Bacon on Mut. Ben. Soc. § 60; 2 Id. § 479 (a).

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.