Opinion
6 Div. 221.
March 16, 1933. Rehearing Denied April 13, 1933.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Lange, Simpson Brantley, of Birmingham, for appellants.
Roy R. Cox, of New Orleans, La., for appellee.
In view of the decision, it is not necessary that briefs be here set out.
The original bill was filed by Mrs. Ethel Lacey, a stockholder, and Mrs. L. M. Richards, a creditor, of the General Bond Mortgage Company, a corporation, in their own behalf and in the behalf of others who may desire to join in the suit, against the corporation, proceeding under section 7065 of the Code of 1923, to enjoin "the respondent, its officers, agents, and C. H. Moses, Roy Cox, A. P. Longshore, C. H. Fullerton, Mark Hodo, Smith, Schultz Hodo, and any and all other persons from exercising any of the authority, privilege or franchises of the respondent corporation, and from collecting or receiving any debts or monies or property or paying out or assigning or transferring any monies, creditors' funds, assets, lands, tenements, effects, or other property," except to a receiver appointed by the court; prays for the appointment of a receiver, for a final settlement of the affairs of the corporation and its dissolution, and for general relief.
The bill was amended by joining R. L. Lange, James A. Simpson, W. H. Brantley, Jr., and Evelyn H. Brantley, stockholders, as parties complainant.
On final submission on the pleading and proof, a decree was entered dismissing the bill, without stating any reason therefor, except that the complainants were not entitled to relief. This appeal is from that decree.
We refrain from passing on the merits of the litigation, for the reason that all the stockholders are necessary parties to a bill seeking to dissolve a corporation, unless the averments of the bill bring the case within the influence of Rule 19 of Chancery Practice (Code 1923, vol. 4, p. 913), and the absence of necessary parties will be notice, ex mero motu by the trial court on final submission, or by this court on appeal from the final decree. Ross v. American Banana Company, 150 Ala. 268, 43 So. 817; Alabama Central Ry. Co. v. Stokes, 157 Ala. 202, 47 So. 336; Noble et al. v. Gadsden Land Improvement Co., 133 Ala. 250, 31 So. 856, 91 Am. St. Rep. 27; Gettinger et al. v. Heaney, 220 Ala. 613, 127 So. 195; Prout v. Hoge, 57 Ala. 28.
There is an absence of averment as to the number of stockholders, who they are and their whereabouts, but the evidence shows that all stockholders are not parties to the suit, and this was sufficient cause for the dismissal of the bill. We are of opinion, however, that the decree dismissing the bill should be without prejudice, and it is so modified, and as modified will be affirmed.
Modified and affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.