Opinion
Decided July 1, 1931.
Corporations — Dissolution — Section 8623-85, General Code — Corporate property or assets recoverable only by independent action against debtors — Final order — Determination that claimants could not pursue remedy in dissolution proceeding — Action revived and personal representatives made parties defendant.
1. Claimants against corporation in dissolution should file independent suit against debtors or holders of corporation's property and not make them parties to dissolution action (Section 8623-85, General Code).
2. Order finally determining that corporate claimants could not pursue remedies in dissolution action against corporate debtors held reviewable as "final order" (Section 8623-85, General Code).
3. Reviving corporate dissolution action to allow representatives of claimants who died after dissolution order to be made defendants held not prejudicial error.
ERROR: Court of Appeals for Lucas county.
Messrs. Tracy, Chapman Welles, for plaintiffs in error.
Mr. Ralph Emery, for defendants in error.
Benjamin T. Batch and others, on December 19, 1929, brought an action in the court of common pleas for the dissolution of The W.L. Milner Co., a corporation organized and existing under the laws of Ohio. On January 24, 1930, Lily L. Coghlin, as trustee under the will of John C. Coghlin, deceased, and Mae C. Rundell were made parties defendant, and with leave of court filed an intervening petition setting up claims against The W.L. Milner Co.
On March 5, 1930, a receiver was appointed and an order entered dissolving the corporation, but the court reserved other matters for further consideration and determination. Thereafter, Lily L. Coghlin and Mae C. Rundell having died, the cause was on April 23, 1931, revived in the name of Edward C. Rundell, as executor of the last will and testament of Mae C. Rundell, deceased, and Helen Coghlin Gardner, individually and as trustee under the will of John C. Coghlin, deceased. Edward C. Rundell and Helen Coghlin Gardner, in their representative capacities, made application for leave to file an amended intervening petition, which, in addition to the matter set up in the original intervening petition, contained allegations of fact showing transactions between The W.L. Milner Co. and the Toledo Trust Company, the Toledo Corporation, the Milner Building Company, and the original plaintiffs in the action, through which it is claimed they became indebted to, or obtained assets belonging to, the dissolved corporation in the amount of several thousands of dollars, and asking to make the Toledo Trust Company, the Toledo Corporation, and the Milner Building Company parties defendant.
The trial court refused to permit the amended intervening petition to be filed, and refused to make new parties as requested, and this proceeding in error is brought to reverse this order of the trial court.
It is obvious that the pleading sought to be filed, so far as it contained matter not in the original intervening petition, set forth a claim against third parties in favor of the dissolved corporation, which should have been brought by the receiver. It is claimed, however, by plaintiffs in error that the receiver is unfriendly toward the bringing of the action, and that it was sought by the new pleading to recover for the dissolved corporation, and that the fund, when recovered, would of course go to the receiver. It is evident that the receiver might find it necessary to bring many actions in settling up the affairs of the dissolved corporation and might be compelled to bring suits in other counties or even in other states. The jurisdiction of the common pleas court in proceedings to dissolve a corporation is fixed by Section 8623-85, General Code. This section, however, does not require that actions brought by the receiver to recover moneys due the corporation, or property or assets belonging to it, should be brought in the action for dissolution. If the receiver had sought to recover money or property for the dissolved corporation, it would have been necessary for him to have brought an independent action. In our judgment, the plaintiffs in error, desiring to pursue their remedies against the third parties named and the plaintiffs, should file an independent suit for that purpose. The trial court did not commit prejudicial error in refusing leave to file the amended intervening petition and in refusing to make new parties defendant.
It is contended by defendants in error, Batch and others, that the order of the court overruling the motion for leave to file the amended pleading and the motion to make new parties was not a final order. In view of the fact that the order prevented the plaintiffs in error from pursuing their remedy in the action for the dissolution of the corporation and finally determining the rights of the parties, so far as the new claims set up in the amended pleading were concerned, we are of the opinion that it was a final order.
The defendants in error have filed a cross-petition in error in which it is contended that the court below erred in allowing the action to be revived and in permitting Edward C. Rundell, executor, and Helen Coghlin Gardner, individually and as trustee, to be made parties defendant. We find that this action did not constitute prejudicial error.
As there is no reversible error apparent on the face of the record, the judgment will be affirmed.
Judgment affirmed.
LLOYD and RICHARDS, JJ., concur.