Worthington v. Gilmers, Inc.

129 S.E. 153, 190 N.C. 128, 1925 N.C. LEXIS 25

• Court: Supreme Court of North Carolina
• Decided: September 16, 1925
• Status: Published

Opinion

Per Curiam.

There was no notice given to produce the books, and their loss was not proved. They were not collateral, but are clearly within the rule announced in Ivey v. Cotton Mills, 143 N. C., 189; Murchison v. McLeod, 47 N. C., 239; Mahoney v. Osborne, 189 N. C., 445.

The freight claims were filed by the Quinn-McGowan Furniture Company, a corporation, in its name, and not in the names of its stockholders. There is no claim that the corporation ever transferred them to the plaintiffs. The corporation, after the dissolution proceedings, remained in existence three years. 0. S., 1193.

The stockholders cannot maintain this action in their' individual capacity upon the allegations in this complaint. We view the evidence in its most favorable light for plaintiffs on a motion to nonsuit, but this rule cannot supply the proper plaintiff.

The corporation itself, or a receiver thereof, is the proper party to sue for its property. Moore v. Mining Co., 104 N. C., 534; Merrimon v. Paving Co., 142 N. C., 539; Hawes v. Oakland, 104 U. S., 450.

The iudgment appealed from is

Affirmed.