Tennessee Fertilizer Co. v. Hand , 147 Ga. 588 ( 1917 )

Atkinson, J.,

dissenting. On motion for rehearing it appears to me that the decision as first announced by the entire bench is wrong. This is a suit by a minority stockholder in a domestic corporation against a non-resident who owns a majority of the stock and by virtue thereof dominates the corporation. The object of' the suit was to recover for the corporation damages resulting from illegal management of the business of the corporation, in order that the damages recovered might be apportioned among all of the stockholders. The liability was not directly to the plaintiff personally; and the corporation would not sue, being unable to do so on account of the defendant’s dominating control. Under the circumstances the plaintiff’s only remedy was in equity. The defendant, being beyond the limits of the State, could not be reached' personally by the process of the court. The situs of stock held by. the defendant in the domestic corporation, however, was at the home office of the corporation in this State, and subject to seizure. Hamil v. Flowers, 133 Ga. 216 (65 S. E. 961); Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565). The plaintiff, not having a personal right to sue, could not proceed by attachment at law, under the Civil Code, §§ 6035, 5055 et seq.; but having a right to redress the wrong, and there being property within the State which could be seized, equity would afford a remedy. Civil Code, §§ 5506, 3652, 5414. That is to say, equity will seize the stock through the instrumentality of a receiver, and, having secured possession of the res within the contemplation of the law, will thereby acquire jurisdiction to administer that for the benefit of the creditors, just as it might be done by attachment under the statute if the plaintiff were in a position to enforce such a remedy at law. To say that for the purpose of collecting an ordinary debt owing to the plaintiff a court of law, by the statutory remedy of attachment, could seize the stock and apply it to the debt, but that where, as in this case, the plaintiff though interesj;ed has no such direct relar tion as would authorize him to institute an attachment proceeding at law, equity would not at his instance, through the instrumentality of a receive'r, seize the property and apply it in the interest of all the stockholders, would deny the broad and effective powers of equity. The majority opinion refers to jurisdiction as if the object of the petition were to obtain.a judgment in personam, whereas all that is sought is a judgment in rem.