National Bank v. Richmond Factory , 91 Ga. 284 ( 1893 )

Bleckley, Chief Justice.

1. From the statement of facts in the official report it will be seen that the petition under which the receiver was appointed was filed before that which the National Bank of Augusta brought against the Richmond Factory, the common debtor, and the principal defendant in both petitions. The receivership covered all the assets of the factory company — that company being an insolvent corporation. As one of its creditors, the National Bank of Augusta had a right to make itself a party to the cause in which the receiver was appointed, and thereby to obtain all the equitable relief to which it was entitled. Instead of so doing, it sought that relief in an independent suit, commenced by itself in the same court, urging the appointment of another receiver. The application for this relief and for the new receivership was passed upon and denied after a receiver in the first suit had been appointed, and a judicial seizure of all of the assets of the insolvent corporation had thus.been made-The present writ of error deals alone with equitable elements and with the proper procedure applicable to the same. It is a “ fast ” writ, based on interlocutory rulings. Why should the same court, after having seized all the assets by one receiver, make another seizure of pai’t of the assets by another receiver? Or why should it administer a part of them in a second suit when it can administer the whole in the first ? Why should matters be thus complicated? We are clear that, as a general, if not an universal rule, all creditors seeking to assert equitable remedies against assets of which the court has taken charge by a receiver, should become parties by intervention or otherwise, to the cause in which the receiver was appointed, and prosecute their remedies in that cause alone. Creditors who stand out may he allowed to prosecute their legal remedies against the assets, if they can make them available; but if they have to invoke the exercise of equitable -powers by the same court, their legal remedies are not available and they are in no condition to proceed by separate and independent actions.

2. It is not a sound construction of section 3149(a) of the code, that a corporation not municipal must be a trader as well as insolvent in order for its assets to be subject to seizure under a creditor’s bill (or a petition in the nature of a creditor’s bill) as provided for by that and succeeding sections. The language is: “In case any corporation not municipal, or any trader, or firm of traders, shall fail to pay,” etc., etc. It is evident that all business corporations are comprehended, whether their business be trading or not, though natural persons who are not traders, and partnerships which are not traders, are excluded. Traders in general, as a class, and corporations not municipal, as another class, are within the scheme and the words of the statute.

There was no error calling for reversal.

Judgment affirmed.