Ross v. American Banana Co.

43 So. 817, 150 Ala. 268, 1907 Ala. LEXIS 436

• Court: Supreme Court of Alabama
• Decided: May 8, 1907
• Status: Published

Opinion

DOWDELL, J.

The appeal in this case is prosecuted from the decree of the chancellor sustaining a demurrer to the bill.

Where a private business corporation has failed of the purposes and objects of its creation, a single stockholder ma3r maintain a bill in equity for the dissolution of such corpoi ation and distribution of its assets among those equitably entitled thereto. Such a bill may be maintained, whether the corporation be solvent or insolvent; but under such a bill the remaining stockholders are necessaiy parties.—McKleroy v. Gadsden Improvement Co., 126 Ala. 190, 28 South. 660, and authorities cited. This principle as to’ necessary parties is not departed from in the later case of Noble v. Gadsden Land & Improvement Co., 133 Ala. 250, 31 South. 856. The latter case only makes application of rule 19 of chancerj’' practice where the parties are numerous.

While the bill avers as a conclusion that the defendant corporation is insolvent, the facts stated in the bill contradict, rather than support, this averment. It is stated in paragraph 8 of the bill that there are subscriptions to the capital stock, payable in money, amounting to more than $300,000, and the bill does, not negative the solvency of these subscriptions to the capital stock, nor that the same is not ample to pa.}' the debts of the corporation. The bill, therefore, failing to sufficiently aver facts showing the insolvency of the corporation, or that it has suspended its ordinary business for the lack of funds to carry on the same, cannot be maintained under the act approved October 2, 1903. — Acts 1903, n. 338, § -50.

The bill contains many charges of wrongs against the corporation by its managing officers, which it' seeks to redress. Considering this theory of the bill, it is wanting in necessary averments of a failure and refusal on the part of the managing body, after proper demand made for that purpose, to redi ess the wrongs complained of, or of averment of sufficient reasons for a failure to make such demand.—Crow v. Florence I. & C. Co., 143 Ala. 541, 39 South. 401; L. & N. R. R. Co. v. Neal, 128 Ala. 149, 29 South. 865; Bell v. Montgomery Light Co., 103 Ala. 275, 15 South. 569; Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 South. 1006; Johns v. McLester, 137 Ala. 283, 34 South. 174, 97 Am. St. Rep. 27.

We find no erior in the ruling of the chancellor, and his decree is affirmed.

Affirmed.

Tyson, (A J., and Anderson and McClellan, JJ.. concur.