Kaiser v. Kaiser , 179 Ga. 305 ( 1934 )

Per Curiam.

Mrs. Ruth B. Kaiser filed in DeKalb superior court a petition seeking to enjoin a revival of the charter of the Hat Kaiser Investment Company, which expired on January 7, 1933. The defendants named were Herbert Kaiser and Mrs. Helen Kaiser Schwab, residents of DeKalb County; Grover C. Kaiser and Irving R. Kaiser, of the State of California; Hat Kaiser Investment Company, a corporation chartered by an order of Fulton superior court and having its principal office in Fulton County. The petitioner alleged that the individual defendants owned 2400 of the 3000 shares of the capital stock of the corporation; that plaintiff owned 4 shares outright, and was the owner of the beneficial interest in 596 shares, the legal title to which was in the First National Bank of Atlanta as her trustee; that on February 17, 1933, a petition for revival of the charter of said corporation was filed in Fulton superior court, pursuant to a resolution of a majority of the stockholders passed on February 10, 1933, in which it was alleged that the corporation had continued in the exercise of its functions as a corporation in ignorance of the expiration of its charter, though in fact said corporation had continued in business since the expiration of its charter with knowledge of such expiration, and had thereby barred itself from the right to a reviver thereof. The petition further alleges that it will be more beneficial to the owners of the stock in said corporation that its affairs be wound up and its assets divided among the holders of the stock than to continue the corporation as such, and that there is no sound reason for continuing the existence of the corporation. She prayed that the defendants be enjoined from proceeding further with the petition for reviver, and that the assets of the corporation be disposed of as in cases of corporations whose charters have expired. A temporary restraining order was granted. The defendants demurred on the ground that “The petition shows on its face that the superior court of Fulton County, Georgia, has jurisdiction over the subject-matter of this petition and jurisdiction over the parties to this case, and that the superior court of Fulton County has taken jurisdiction over the subject-matter of this litigation prior to the institution of this action.” The defendants also demurred on the grounds that the allegations of the petition affirmatively disclose that plaintiff has a full and adequate remedy at law, and that the allegations of the petition fail to set forth a cause of action against the defendants or any of them. Special demurrers were directed to certain portions of the petition. The court overruled the demurrers. The defendant answered, putting in issue the material averments of the petition. On “interlocutory hearing the defendants made a motion to dismiss the petition on the ground that the action was improperly brought in DeKalb superior court, and should have been brought in Fulton superior court. The court entered no formal order on this motion, but, as stated in the bill of exceptions, “the court assumed jurisdiction of the cause and passed on its merits, and in substance and effect denied the oral motion of defendants to dismiss the ease.” Upon this hearing both sides introduced evidence, that for the plaintiff including her verified petition, and copy of the petition for reviver. The petition for reviver was filed in the name of the Nat Kaiser Investment Company. The evidence was in sharp conflict. At its conclusion the court granted an injunction restraining the defendants from proceeding further with the application for reviver of the charter of the corporation. The defendants excepted to each of the rulings heretofore stated.

The first headnote requires no elaboration.

The judgment overruling the general demurrer leaves the proceeding pending for trial at a future term of the court. The overruling of the special grounds of demurrer, if erroneous, is not such error as to require a reversal of the judgment, which retained the action in court. The portions of the petition which were attacked by special demurrer may still be so amended as to afford the defendants proper information to enable them to prepare their defense; and to this end the former judgment overruling the special demurrers is set aside, with direction to the court to make such ruling as to the special demurrers as in his judgment may be in accordance with law. The petition alleged that “ while said corporation has continued in business since the date of the expiration of its charter, it has continued with knowledge of the expiration of its charter.” If this be true, as it must be taken to be on demurrer, the defendants are not entitled to have the charter of the corporation revived. The provision of law for the reviver of charters of corporations which have expired imposes, as one of the requisite conditions for the obtaining of such reviver, that “such corporation has continued in business in ignorance of” the fact that such charter has expired. Park’s Code, § 2823 (i).

In the conflict of evidence as to the ignorance of the stockholders of the corporation as to the expiration of the corporation’s charter, the judge, as trior of the facts, was authorized, under the evidence for the plaintiff as incorporated in her sworn petition, to find that the corporation had continued in business, after the expiration of its charter, with knowledge thereof.

Judgment affirmed.

All the Justices concur, except Hutcheson, J., disqualified. Atkinson, J., concurs in the judgment.