Central Bank & Trust Corp. v. Piedmont Portland Cement Co. , 147 Ga. 330 ( 1917 )

Hill, J.

From the foregoing statement of facts it appears that the original petition was neither a creditors’ bill, nor a stockholders’ bill, nor a bill to marshal the assets of the corporation. If it were, section 5408 of the Civil Code might apply. That section is as follows: “Any person claiming equitable relief may make all necessary parties to secure equitable relief, either at the beginning of his suit or afterwards by amendment; and may make amendments in matter of form or substance.” The order of the court to which exception is taken was improperly granted. The litigation growing out of the original petition and amendments and answers thereto had culminated in a final consent verdict and decree, the terms of which had been complied with, and the litigation between the parties finally ended. There was nothing in the original pleadings to indicate a purpose to wind up the corporation; and this last intervention, with new parties and new subject-matter, is not germane to the original suit and sets up a new and distinct cause of action — that of recovering damages from the directors of the corporation for alleged fraudulent and ultra vires acts, and malfeasance in securing assets of the corporation to themselves, to the exclusion of the intervenors, after final termination of the litigation. It will be borne in mind that the original suit proceeded against the Piedmont Portland Cement Company (the debtor corporation) for the purpose of foreclosing a mortgage against it and disposing of its assets, both of which culminated in a decree which by agreement contained provisions for payments of claims superior to the mortgage. After this had been done, we do not see how the character of the suit can be changed and the directors made parties defendant, with the sole object of holding them personally liable on issues which are entirely foreign to those of the original litigation, which has terminated. See Real Estate Bank & Trust Co. v. Baldwin Locomotive Works, 145 Ga. 105 (88 S. E. 584). The petition as amended has accomplished the purpose for which it was originally brought. If there was anything in the original petition which charged the directors with fraud, or malfeasance or misfeasance, or ultra vires acts, and which sought to hold them personally liable, such charges were stricken by order of the court, and there was no exception to this order. It is true that it was afterwards sought to reinstate these charges; but the court declined to allow this, and no exception was taken to this ruling. The original suit as amended was in its essence one to foreclose a mortgage and to obtain a receivership, etc. Receivers wore appointed to take charge of the property pending the foreclosure proceedings, and to sell it as a result of the foreclosure, and to pay out the proceeds of the property under final verdict and decree. This was done. It was not a suit in the interests of all parties who might have claims of one sort or another. Sharp and others, the intervenors, were not creditors of the corporation, but were stockholders, and. the original suit was not instituted by the present intervenors. It was between the mortgagor and the mortgagees; and while our law is liberal in allowing amendments to pleadings, it has never gone to the extent of allowing amendments which set up an' entirely new cause of action, or introduce new and distinct parties, after final termination of the litigation. Whether a separate and distinct suit could be maintained against the directors of the corporation for the reasons set out in the intervention is not involved in the present cause.

Judgment reversed.

All the Justices concur.