Bank of Soperton v. Holland , 142 Ga. 796 ( 1914 )

Hill, J.

1. In the case of Bank of Soperton v. Empire Realty Trust Co., 142 Ga. 34 (82 S. E. 464), the equitable petition which is the beginning of the present litigation in effect was held not to be maintainable, because equivalent to a suit by a corporation to marshal its own assets. In that ease it was said, that “No ruling is made at this time as to what effect, if any, the acceptance of the proposed surrender of the charter of the company, made by way of cross-petition in this proceeding, and further orders based thereon, might have. Such questions are left for determination when they may arise.”

2. The corporation whose affairs it was sought to wind up having been made a party defendant, the relief asked by it in its answer, namely, that it be dissolved in accordance with the provisions of the act approved August 13, 1910 (Acts 1910, p. 106), although sought in the form of a cross-bill, was, in view of the nature of the original bill, in practical effect an amendment to the corporation’s effort to liquidate its affairs.

3. The matter set up in the cross-bill, whether treated independently as a cross-bill, or in effect as an amendment to the original petition, is not germane to the suit, inasmuch as it invokes a statutory remedy between the State and the corporation for the surrender of its charter and dissolution, in which proceeding notice is to be given by publication, and the issues therein are to be tried by a judge without the intervention of a jury.

December 15, 1914.

Equitable petition. Before Judge Mathews. Bibb superior court. April 11, 1914.

This case is a continuation of the litigation before this court in the case of Bank of Soperton v. Empire Realty Trust Company, ante, 34 (82 S. E. 464), in which the grant of a receiver and an interlocutory injunction at the instance of the petitioners was under review. The facts of the case, showing its status up to the order there reversed, are set forth in the report of that ease. The ease came on for further hearing on the relief sought by the cross-petition of the Empire Bealty Trust Company, seeking a dissolution under the act of 1910 (Acts 1910, p. 106), and objections to the granting of such relief filed by the Bank of Soperton as a creditor of the corporation. Upon the hearing of this phase of the case the court overruled the objections above referred to, and granted an order accepting the proposed surrender of the charter of the corporation, decreeing its dissolution, and ordering certain steps taken looking to the winding up of its affairs by a receiver. To these rulings the Bank of Soperton excepted.

Hardeman, J ones, Park & J ohnston, for plaintiff in error. Mallary & Wimberly, contra.

4. Such statutory proceeding is in no sense a part of or auxiliary to an equitable proceeding to liquidate the affairs of a corporation under alleged equitable principles.

5. The court erred in not sustaining the objections filed to the proceedings for dissolution sought by way of cross-bill, and consequently also erred in granting the further orders based on such proceedings.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.