Opinion
No. 33798.
October 2, 1939.
1. EQUITY.
In proceeding for dissolution of incorporated lodge and surrender of its charter, demurrer filed by alleged creditor to the petition confessed the allegation of fact to the effect that there were no debts owing by the lodge, and that hence there were no creditors.
2. CORPORATIONS.
In proceeding for dissolution of corporation and surrender of its charter, creditor is entitled to appear and establish claim, and have claim fixed as a charge against corporate assets in the hands of persons to whom assets would pass upon dissolution.
3. BENEFICIAL ASSOCIATIONS.
In proceeding for dissolution of incorporated lodge and surrender of its charter, alleged creditor could not bring into issue by demurrer allegations of the petition to the effect that there were no debts.
4. BENEFICIAL ASSOCIATIONS.
In proceeding for dissolution of incorporated lodge and surrender of its charter, alleged creditor could not challenge legal sufficiency of the petition, as respects right of alleged sole surviving members to share in the corporate assets exclusively, without first obtaining leave of court, upon proper showing, to intervene as a party or to appear as amicus curiae.
APPEAL from the chancery court of Wilkinson county; HON. R.W. CUTRER, Chancellor.
W.F. Tucker, of Woodville, for appellant.
The petition to dissolve this fraternal corporation is based upon the statute law to dissolve a commercial corporation before the Code of 1906, and is not according to any statutory law providing for the dissolution of any corporation under the Code of 1892, or under Section 932, Code of 1906, as amended by Chapter 124, Laws of 1918, or according to section 4170, Code of 1930, all of said statutes require a meeting of the stockholders to determine whether or not the charter of corporations shall be dissolved or surrendered.
There is no copy of a charter, certificate, constitution, or by laws of the appellee filed with the petition, and the fourth grounds of demurrer to the petition should have been sustained.
Section 527, Code of 1930; Thomas et al. v. B. Rodenberg, 153 Miss. 314, 120 So. 732; Enochs-Flowers, Limited, v. Bank of Forest, 172 Miss. 36, 157 So. 711; North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135. Section 4172, Code of 1930; Section 5114 of Chapter 127, Code of 1930.
The eighth and ninth grounds for demurrer to the petition should have been sustained by the chancery court as in violation of Section 5254, Code of 1930, as amended by Chapter 195, Laws of 1938.
Nowhere in the petition are the assets of the appellee, fraternal order, described.
Section 2113, Code of 1930.
We submit that this case should be reversed and remanded for a new trial upon the proper application made by one of the legally designated officers of the state, provided for and named in section 5254, Code of 1930, and amendment thereto.
Jones Stockett, and W. Roger Jones, all of Woodville, for appellee.
Petition of appellee, Woodville Lodge No. 3581, Grand United Order of Odd Fellows, in court below prayed for the dissolution of and surrender of charter of duly organized corporation: appellant had no legal right to demur to said petition, as the law fully provides for relief of creditors of dissolved corporation: appellant is an interloper herein.
Sections 4170, 4171, and 4172, Code of 1930; Bates v. Miss. Industrial Gas Co., 173 Miss. 361, 161 So. 133.
Appellant contends that Insurance Department of Mississippi controls appellee in its operations; appellee submits that Insurance Department has nothing to do with appellee.
Section 5258, Code of 1930, as amended by Chap. 192, Laws of 1938.
Appellee submits that its petition for dissolution was sufficient.
Section 4170, Code of 1930.
Argued orally by W.F. Tucker, for appellant, and W. Roger Jones, for appellee.
The petitioner brought this proceeding in the Chancery Court of Wilkinson County, alleging its existence as a corporation and seeking a decree of dissolution and the surrender of its charter. The petition was signed and sworn to by A.J. Glenn and Peter Ashford who were alleged to be the sole surviving members of the lodge, and entitled to all of the corporate assets upon the surrender of the charter and the legal dissolution of the corporation.
It was further alleged that the petitioner owed no debts of any kind to any person; that the corporation had performed and discharged all obligations imposed upon it by law; and that due to the death, withdrawal, or cessation of membership for any cause of the other members, officers or directors, the said Glenn and Ashford were the only persons left who were entitled to participate in the ownership of the assets of said incorporated lodge.
The petition also prayed for the publication of the proper notice for the time required by law to all persons having claims against the corporation to appear and make proof thereof in order that the same might be adjudicated. This was accordingly done, and with the result that the appellant, Sallie Poole, appeared and interposed a demurrer to the petition in the caption of which she referred to herself as a creditor. The demurrer was overruled, and she was thereupon granted an appeal to this Court to settle "the controlling principles of law in the case."
It is unnecessary to set out in this opinion the several grounds of demurrer. Suffice it to say the demurrer, under the well settled principles of pleading, confessed the allegation of fact in the petition to the effect that there were no debts owing by the corporation, and that hence there were no creditors. The appellant did not otherwise advise the court as to how her interest would be affected by the decree of dissolution prayed for. Nor did she obtain leave of the court to intervene as a party to the suit to contest the allegations of the petition or deny the asserted right of the surviving members of the lodge, Glenn and Ashford, to the corporate assets.
Under the law, and pursuant to the notice to creditors, if any there were, the appellant would have been entitled, if in fact she was a creditor, to appear and establish her claim and have the same fixed as a charge against the assets of the corporation in the hands of such persons to whom the same would pass upon a dissolution thereof. She was not entitled to bring into issue by demurrer the allegation of the petition to the effect that there were no debts. Nor could she challenge the legal sufficiency of the petition as to whether Glenn and Ashford were alone entitled to share in the corporate assets without first obtaining leave of the court, upon proper showing, to intervene as a party, or to appear as amicus curiae.
It therefore follows that the action of the court below in overruling the demurrer was correct, and that the cause should be affirmed and remanded for further proceedings.
Affirmed and remanded.