Pritchard v. Childs 179 Ga. 387

Atkinson, J.

J. D. Childs, as trustee in bankruptcy for Paramount Dairy Company, instituted an action against C. E. Pritchard, E. B. Pritchard, S. W. Allen, E. J. Hudson, Southland Dairy Cor*388poration, and Southern Grocery Stores Inc., seeking to recover $10,000 as the value of the capital stock of the Paramount Dairy Company, a corporation, which, as the petition as amended alleged, the defendants issued and caused to be issued without any consideration being paid to or received by the corporation; also to recover $20,000 as the value of assets and funds of the corporation, alleged to have been fraudulently converted by the defendants to their use and benefit. The defendants interposed demurrers which the court overruled. All of the defendants, except the Southern Grocery Stores Inc., filed exceptions pendente lite. The Southern Grocery Stores Inc. filed a direct bill of exceptions, on which the judgment of the trial court was reversed. Southern Grocery Stores Inc. v. Childs, 174 Ga. 888 (164 S. E. 766), where the allegations of the petition as amended are sufficiently stated. Subsequently the case proceeded to trial against the remaining defendants, and a verdict for the plaintiff was returned. The defendants made motions for a new trial, which by agreement were consolidated. A new trial was refused, and the movants excepted, assigning error on the judgment refusing a new trial and on the rulings excepted to pendente lite.

There being no allegation that the defendants were subscribers to the capital stock in the Paramount Dairy Company, and no allegation of any contract to pay the amount thereof, no cause of action was alleged for recovery of the par value of the capital stock.

Judgment reversed.

All the Justices concur, except Bussell, C. J., who dissents, and Hutcheson, J., disqualified.

ON MOTION FOR REHEARING.

The petition failed, even when considered in connection with the minutes of the Paramount Dairy Company referred to in paragraph 27, to allege that any of the -defendants were subscribers for capital stock in the Paramount Dairy Company. The decision in Allen v. Grant, 122 Ga. 552 (50 S. E. 494), upholding the right of a trustee in bankruptcy of an insolvent corporation to sue for the recovery of an unpaid subscription for the capital stock, is not applicable to the instant case.

The allegations failed to show a cause of action based on mismanagement of the business of the Paramount Dairy Company by its officers and conversion of its property.

*389The judge erred iu overruling the general demurrers to the original petition as amended; and all further proceedings were nugatory. Rehearing denied.