Riordan v. Baldwin , 150 Ga. 540 ( 1920 )

Fisi-i, C. J.

(After stating the foregoing facts.) Properly construed, and in its last analysis, the real purpose of the petition is to place the affairs and property of the defendant corporation in the hands of a receiver, for no other reason than that its directors have, without authority, given to the defendant Biordan, an automobile belonging to the corporation, and that he, the regularly appointed liquidating agent, has not fully and fairly performed the duties for which he was employed. There is no pretense that the corporation is not solvent. No reason is alleged or shown why the corporation can not by its stockholders or directors dispose of its remaining assets, and make a proper division among its shareholders. Nor does it appear that the plaintiffs had “made an earnest effort to obtain redress at the hands of the directors and stockholders, or why it could not be done, or it was not reasonable to require it.”

One of the instructions to the jury complained of in the motion for new trial is: “ If you should find that there are some assets of the Dawson Consolidated Grocery Company that have been undisposed of, money, property, or accounts, which will hereafter be necessary to be distributed, then you should find in favor of a receiver.” It is clear that plaintiffs, in view of the facts of the case, were not entitled to a receivership for the defendant corporation. See Hand v. Dexter, 41 Ga. 454; Empire Hotel Co. v. Main, 98 Ga. 176 (25 S. E. 413), and authorities cited.

The petition contains no prayer for a recovery by the plaintiffs against defendant Biordan for the value of the automobile which they claim was given to him by the directors of the corporation without authority, nor is there any prayer that the plaintiff, the First State Bank, recover of either of the defendants the stock dividend due it; but on the contrary there is a prayer that a receiver be appointed to take charge of all the assets of the corporation, "including the $15,400 on deposit in the City National Bank, the Buick automobile in question, the notes and accounts, choses in action, . . with direction to protect and conserve same, reduce same to cash, . . and to • properly administer the assets of said corporation under the direction” of the court. Even if the prayer for- an accounting between the defendants and the plaintiffs contemplated that it should be had prior to the appointment of the receiver, no such accounting was m'ade by the jury, nor was there any evidence to authorize it.

It follows that neither of the findings of the jury in favor of the plaintiffs was authorized by the pleadings and the evidence.

Judgment reversed.

All the Justices concur.