« PreviousContinue »
controversies that arise between him and the debtors or creditors of the corporation by arbitrament or reference. 64 v. 153, SS 15, 16; S. &. S. 245.
$ 5664. How contingent engagements discharged
If there be any open and subsisting engagements on contracts of the corporation, which are in the nature of insurance, or contingent engagements of any kind, the receiver may, with the consent of the party holding such engagements, cancel and discharge the same by refunding to such party the premium or consideration paid thereon by the corporation, or so much thereof as shall be in the same proportion to the time which remains of any risk assumed by such engagements, as the whole premium bears to the whole term of such risk; and, upon such amount being paid by the receiver to the person holding or being the legal owner of such engagement, it shall be deemed canceled, and discharged as against the receiver. 64 V. 153, § 17; S. &. S. 245.
$ 5665. Receiver's compensation
The receiver shall, in addition to his actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed to executors or administrators, as well as reasonable counsel fees for services rendered him. 64 V. 153, $ 18; S. & S. 245.
$ 5666. Receiver to retain money for certain purposes
The receiver shall retain, out of the money in his hands, a sufficient amount to pay the sums which he is hereinbefore authorized to pay, for the purpose of canceling and discharging any open or subsisting engagements; and, if any suit be pending against the corporation or the receiver, for any demand, he may retain the proportion which would belong to such demand if established, and the necessary cost of the proceedings, to be applied according to the event of such suit, or to be distributed in a second or other dividend. 64 v. 153, SS 19, 20; S. &
$ 5667. How distribution to be made
The receiver shall distribute the residue of the money in his hands in the payment of obligations of the corporation which
have been exhibited by creditors, and ascertained, in the followorder:
1. Debts entitled to a preference under the laws of the United States.
2. Mortgages, judgments, and other liens on the real estate of the corporation, in the order of their priority.
3. Debts which are liens upon the capital stock or property of the corporation, other than real estate, in the order of their priority, and the extent of the value of the stock or other property on which they are liens. 64 V. 153, $ 21; S. & S. 245.
$ 5668. When dividend may be made
The receiver may, from time to time, make dividends of the money in his hands, among the creditors of the corporation, until they are paid in full; but no dividend shall be made to the stockholders of the corporation until after the final dividend to creditors; and if, after such final dividend is made, there remain any surplus in the hands of the receiver, he shall distribute the same among the stockholders of the corporation, in proportion to the respective amounts paid in by them severally on their shares of stock. 64 v. 153, SS 22, 23; S. & S. 246.
$ 5669. Receiver to act on order of court
The receiver shall be subject to the direction and control of the court as to the time of making dividends, both to the creditors and stockholders of the corporation, and as to the time of closing up the concerns of the corporation, and rendering his final accounts, and may be compelled to account at any time; and he may be removed by the court, and any vacancy created by such removal, or by death, or otherwise, may be filled by the court. 64 v. 153, SS 24, 25; S. & S. 246.
$ 5670. Account of receiver to court
When required by the court, the receiver shall render a full and accurate account of all his proceedings to the court, on oath, which may be referred to a referee or master commissioner to examine and report thereon; but before he renders any such account he shall insert a notice of his intention to present the same, once a week, for three consecutive weeks, in some newspaper printed and of general circulation in the county wherein the principal place of business of the corporation is situate, specifying the time and place at which such account will be rendered. 64 v. 153, SS 26, 27; S. & S. 246.
$ 5671. Report of referee on receiver's account
The referee to whom such account is referred shall hear and examine the proofs, vouchers, and documents offered for or against the same, and shall report thereon fully to the court; and when the report is made, the court shall hear the allegations of all concerned therein, and shall allow or disallow the account, and may decree the same to be final and conclusive upon all the creditors of the corporation, upon all persons who have claims against it, upon any open or subsisting engagement, and upon all the stockholders of the corporation. 64 v. 153, SS 28, 29; S. & S. 246.
$ 5672. Further duties of receiver
The receiver shall also account, from time to time, in the same manner, and with like effect, for all money which comes to his hands after such account is rendered, and for all money retained by him for any of the purposes hereinbefore specified, and shall pay into court all unclaimed dividends. 64 v. 153, § 29; S. &
$ 5673. Dissolution of manufacturing or mining company
when stockholders petition thereforWhen stockholders owning one-fifth or more of the paid-up stock of a corporation organized for manufacturing or mining file in the office of the clerk of one of the courts mentioned in section fifty-six hundred and fifty-one, their petition containing the statement that the corporation is insolvent, or that the dissolution thereof will be beneficial to the stockholders, or that the objects of the corporation have wholly failed or been entirely abandoned, or that it is impracticable to accomplish such objects; or that the profits of the business are being diverted from the best interests of the stockholders equally or that the business of the corporation can not be profitably conducted and that they therefore desire a dissolution of the corporation the court shall, if it deem it beneficial to the interest of the stockholders make an order requiring the officers of the corporation within reasonable time to file in court the inventories, accounts and statements required by section fifty-six hundred and fifty-two and upon the filing thereof the
court shall proceed as provided in section fifty-six hundred and fifty-four requiring all persons interested in the corporation to show cause if any they have why such corporation should not be dissolved and the court shall, if it deem it beneficial to the interests of the stockholders, adjudge the dissolution of the corporation in conformity with the provisions of this chapter made upon finding that the statements contained in the petition are true and upon such proceeding being had such other and further proceeding shall, in the judgment of the court, be had for the final settlement and adjustment of the affairs of the corporation as are hereinbefore provided should be had. 92 0. L. 130.
For questions of practice relating to appointment of receiver, etc., under this section, see Mercantile Trust Co. v. Etna Iron Works, 4 C. C. 579. Owner of stock by transfer not entered on company's books can not petition for dissolution. Armstrong v. Herancourt Brewing Co., 26 C. 39 (C. P.).
$ 5674. How certain corporations may surrender charter
When a majority of the directors, trustees, or other officers having the management of the concerns of any corporation, become satisfied that the objects of the corporation cannot be accomplished, and no installment of the capital stock of the corporation has been paid, and no investments have been made, and no debts incurred which are unpaid, they, or the president of the board of directors, trustees, or other officers, may call a meeting of the stockholders of the corporation at such time and place as he or they may designate, by publication in some newspaper of general circulation in the county wherein the principal office of the corporation is located; and if a majority in amount of the stockholders present at such meeting, in person or by proxy, decide that the objects of the corporation cannot be accomplished, the corporation shall thereupon be dissolved, and shall cease. 66 v. 94, $ 1.
$ 5675. Directors at time of dissolution may settle af
fairs of corporationUpon the dissolution of a corporation, by the expiration of the term of its charter, or otherwise, and unless other persons be appointed by the legislature, or by the stockholders, directors, or trustees of the corporation, or by a court of competent authority, the directors, trustees, or managers of the affairs of such corporation, acting last before the time of its dissolution, by whatever name they may be known in law, and their survivors, shall be the trustees of the creditors and stockholders of the dissolved corporation, and shall have full power to settle the affairs of the same, collect and pay the outstanding debts, and divide among the stockholders the money and other property remaining, in proportion to the stock of each stockholder paid up after the payment of debts and necessary expenses; the persons so constituted trustees may sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of the corporation, describing it by its corporate name, and they shall be jointly and severally responsible to the creditors and stockholders of the corporation, to the extent of its property and effects that come into their hands; such trustees may be made or become parties to any action by or against the corporation; and all liens of judgments existing at the time of the dissolution, either in favor of or against the corporation, shall continue in force in the same manner as if the dissolution had not taken place. 40 v. 67, $ 14; 48 v. 90, S 5; S. & C. 363 and 366.
A warrant of attorney given to a bank for the entry of judgment may be used by the trustees provided by this section after its charter has expired; but the trustees must sue in their collective name, and not in their individual names. Martin v. Belmont Bank, 13 Ohio, 250. § 5676. When the last board is without a quorum
When the last board of directors or trustees of an expired or dissolved corporation becomes unable, by the refusal or neglect of a part of such trustees to act, or for want of a quorum, to act as trustees for closing the affairs of the corporation, any number of such last board of directors or trustees may apply to the court of common pleas of the proper county to declare vacant the places of such directors or trustees as refuse or neglect to act, and such court may empower the remaining directors or trustees, not less than two in number, or appoint any other number of persons not exceeding three, to perform the duties of trustees under the preceding section. 47 v. 15, $ 1; S. & C. 365.
$ 5677. Petitions under preceding sections
All applications made under the preceding section shall be by petition, and the court hearing the same may, on the same petition, make needful orders against any former trustees, or against any assignees of such corporation, for the conveyance of property by them held, and for the assignment of all rights in them vested,