Opinion
6 Div. 585.
May 19, 1927.
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Emil Ahlrichs and F. E. St. John, both of Cullman, for appellants.
No case is made by the bill for intervention by a court of equity. It is not shown that any effort was made to obtain the consent of all the stockholders to a dissolution. Code 1923, § 7064; Phinizy v. Anniston Land Co., 195 Ala. 661, 71 So. 469. John F. Beyer as administrator of J. H. Karter's estate, is improperly joined. Hays v. Ahlrichs, 115 Ala. 239, 22 So. 465. George Karter has no legal title to any of the stock, and there is a misjoinder of respondents. Hays v. Ahlrichs, supra; Cudd v. Reynolds, 186 Ala. 207, 65 So. 41. Allegation of matters alien to the issues involved rendered the bill demurrable. Code 1923, § 6525. A bill praying for a receiver should be sworn to. Chancery rule 15, 4 Code 1923, p. 912.
Earney Bland, of Cullman, for appellees.
The objection of misjoinder of parties defendant can only be taken by the party improperly joined. Pate v. Hinson, 104 Ala. 599, 16 So. 527; Teal v. Chancellor, 117 Ala. 612, 23 So. 651; Lacey v. Pearce, 191 Ala. 258, 68 So. 46. Owners of two-thirds of the corporate stock, who cannot obtain the consent of all the stockholders, may file petition for dissolution in the circuit court. Code 1923, § 7064. When it clearly appears that the business of a corporation cannot be profitably continued, the corporation may be dissolved on application of a majority of the stockholders. Decatur Land Co. v. Robinson, 184 Ala. 322, 63 So. 522; Beach on Corp. § 783.
By statute the holders of all the capital stock in a corporation may dissolve it at will by agreement in writing signed, attested, certified, and recorded as therein prescribed. Code, § 7063.
The holders of two-thirds in value of such stock, wishing a dissolution, but, who cannot obtain the consent of all to a dissolution in the manner prescribed, may file a bill or petition to that end in a court of equity. Code, § 7064.
Under our system of pleading it was sufficient to allege that complainants cannot obtain the consent of all the stockholders substantially in the language of the statute.
The administrator of a deceased stockholder is a proper party entitled to join as cocomplainant in the suit. Wolfe v. Underwood, 97 Ala. 375, 12 So. 234. The distributee was not a necessary party to the suit. Whether he was a proper party respondent, or the bill was subject to demurrer for misjoinder, could be raised only by him. Lacey v. Pearce, 191 Ala. 258, 68 So. 46; Pate v. Hinson, 104 Ala. 599, 16 So. 527; Ware v. Curry; 67 Ala. 274.
The record discloses that the decree over-ruling the demurrer was based upon amendment bringing the case within Code, § 7064.
A former decree sustained demurrers to the bill based upon other equitable or statutory grounds.
Special allegations remaining in the bill, to which separate grounds of demurrer were addressed, were surplusage in the bill as last amended. Such demurrers did not go to the equity of the bill, nor to any special equity involved on this appeal. The ruling thereon was free from error.
The statutory bill or petition is not required to be verified by affidavit. No receiver is appointed until after decree of dissolution, unless applied for on special grounds. Florence Gas, Electric Light Power Co. v. Hanby, 101 Ala. 15, 13 So. 343.
A bill is not demurrable because it prays too much. Until active proceedings to obtain the appointment of a receiver are instituted, there is no necessity for a sworn bill or petition.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.