Griner v. Starling , 223 Ga. 282 ( 1967 )

Nichols, Justice.

1. A petition against an insolvent trader which meets the requirements of Code Ch. 28-4 is not subject to general demurrer.

2. The petition in the present case shows that the plaintiff was an unsecured creditor whose claim represented more than one-third of the unsecured debts of the defendants who were engaged in the operation of a newspaper and office supply-business, that the defendants were insolvent and permitting the assets of the business to be squandered, permitting the physical assets of the business to deteriorate from lack of proper upkeep, that a part of the machinery, and so forth has been sold by the defendants without accounting for the proceeds, that taxes (state, county, and federal) have been allowed to accumulate, that judgments and executions (as shown by an exhibit to the petition) have been allowed to accumulate against the defendants, and that the defendants have failed and refused to pay the plaintiff the past due indebtedness due her. Accordingly, the trial court did not err in overruling the defendants’ general demurrers to plaintiff’s petition on the ground that it failed to allege sufficient facts to set forth a cause of action and entitle the plaintiff to the appointment of a receiver.

3. The necessary parties to an action against an insolvent trader seeking to have the assets of such trader distributed under Code Ch. 28-4 are one or more creditors representing at least one-third of the unsecured debts of such trader. Code § 28-402; Maddox v. Lanier, 107 Ga. 291 (33 SE 58). A secured creditor is not a proper party plaintiff. Lowe Bros. Cracker Co. v. Brooke, 91 Ga. 243 (18 SE 136), and under Code § 28-404 any creditor may become a party under order of court. Therefore, the remaining ground of demurrer, which complains of a nonjoinder of necessary parties because a secured creditor was not a party to the suit, was properly overruled.

Judgment affirmed.

All the Justices concur. Edward Parrish, Elsie H. Griner, for appellants. E. R. Smith, Sr., W. D. Knight, for appellee.