Summary
In Albert v. Clarendon Co., 53 N. J. Eq. 625, 23 Atl. 8, Vice Chancellor Van Fleet said that a general demurrer would be an appearance, but the point now considered was not raised in the case.
Summary of this case from Groel v. United Elec. Co. of N.J.Opinion
10-21-1891
ALBERT v. CLARENDON LAND, INVESTMENT & AGENCY CO.
A. Q. Keasbey, for the motion. John W. Taylor, opposed.
Suit by John H. Albert against Clarendon Land, Investment & Agency Company, as an insolvent corporation. Defendant moves to dismiss the bill for want of equity.
A. Q. Keasbey, for the motion.
John W. Taylor, opposed.
VAN FLEET, V. C. The proceeding against an insolvent corporation, whether domestic or foreign, authorized by sections 70 and 72 of the corporation act, (Revision, p. 189,) is a proceeding in rem. It may be commenced by bill or petition, and a receiver may be appointed with or without notice to the corporation, as the chancellor shall decide the exigencies of the case require; and, if he orders notice to be given, he may direct that it shall be given either by service or by publication. The proceeding is summary in its character, and strictly in rein. Its main object is to put the property of the corporation in the custody of the law, so that its proceeds may be applied, in due course of administration, to the payment of the debts of the corporation. The order appointing the receiver in this case is unquestionably valid; and I think it is equally indisputable that the receiver has, by force of it, full power to sell and transfer all the property of the defendant corporation in this state. The defendant is not in a position where it can raise the question whether this court can acquire jurisdiction over a foreign corporation by a notice pursuant to an order of publication, so as to pronounce a valid decree adjudging it to be insolvent, and thereafter proceed to make distribution of its assets. The defendant has made a motion to dismiss the bill for want of equity under a notice given pursuant to paragraph 224 of the rules. This notice is, in all its essential qualities, under our practice, a demurrer. No one, I suppose, will pretend that, if the defendant had filed a demurrer, such act on its part would not have constituted an appearance to the suit for all purposes, and precluded it from denying that it was in court. And yet it has done that which, in all its legal consequences, is equivalent to the filing of a demurrer. The defendant must be held to have appeared to the suit, and consequently to be now as completely subject to the jurisdiction of the court as if a formal appearance had been entered by it. The defendant moves to dismiss the bill, because it does not allege that the defendant was doing business in this state at the time the bill was filed. The defendant is a foreign corporation. Our statute concerning corporations declares that foreign corporations doing business in this state shall be subject to its provisions so far as the same can be applied to them. Revision, p. 196, § 103. The bill alleges that the defendant "has carried on its business indifferent parts of the United States, including the state of New Jersey, and now has goods and chattels, choses in action, and other property in this state; and that it has become insolvent, and largely indebted beyond its ability to pay, and has recently suspended its business." The meaning of that section of the statute which I had quoted seems to me to be clear. It was enacted to give this court the same jurisdiction over foreign corporations doing business in this state, when they become insolvent and have property here, that it exercises over insolvent domestic corporations, so far, at least, as should be necessary for the sequestrationof their property here, and converting the same into money. To authorize this court to appoint a receiver of an insolvent foreign corporation it is not necessary that the corporation should be engaged in carrying on its business in this state on the very day when the bill or petition is filed, but this court may take jurisdiction in any case where it is made to appear that the corporation has done business here, and still has property here, although at the time when the bill or petition was filed its business here is entirely suspended. The obvious design of the statute is to give the creditors of any foreign corporation which, having done business in this state, becomes insolvent, and has property here which should he administered for the benefit of its creditors, the same remedy against the corporation, in respect to its property here, that it gives to the creditors of an insolvent domestic corporation. Any. other construction would, as it seems to me, defeat the main object of the statute, and render it worthless. Under this construction there can be no doubt that the bill in this case is sufficient. The motion to dismiss is denied, with costs.