The record-union., 1899-10-25

after applying the income of the cor
poration TO the same.
That said corporation can no longer
continue business without a continued
impairment of the assets of said cor
poration, and dues to be paid in Dy
members. That the assets Of said cor
poration IL converted into money at this
time. are insufficient to pay the ex-
listing Indebtedness of said corporation,
and reimburse the stockholders of said
corporation for moneys paid by them
as dues. That the further proceeding
with It's business by said corporation
would be unsafe and hazardous to the
public and to those having funds in
it's custody and to it's stockholders"
The Court. it is true. further found
that it is necessary and a proper case
for the appointment of a receiver to
settle and liquidate the business of the
said defendant corporation; but this is
essentially a conclusion of law, which
must find its justification in the allie
cations of the complaint and the find
ings of fact if it is sustained.
Section of said Act authorizes the
report hereinbefore stated from said
Commissioners. to apply to the Judge
of the Court to issue an injunction re-
straining the directors from further
proceeding with it's business until a
hearing can be had. and further pro-
vides such Judge may on such applica-
ton, issue such Injunction, and after
full hearing, may dissolve or modify
| -
such orders and DEGREES, according to
the course of proceedings in equity, to
restrain or prohibit the further prose-
cution of the business of the corpora
ton, as may be needful in the prem
ises; and may appoint one or more re-
eeivers to take possession of it's prop
erty and effects. subject to such direc-
tions as may from time to time be pre-
scribed by the Court"
1t will be observed that this Statute
does not imperatively require the ap-
pointment of a receiver, but permits
it in the discretion of the Court, or in
other words, in proper cases.
| In Havemeyer VS.. Superior Court, "a
| Cal, 321, 800, Chief Justice Beatty
speaking for the Court. said:
Under our codes the rule is not to
appoint receiver. but to leave the
whole matter of liquidation and distri-
| button to the exclusive control of the
directors of the corporation in office at
| the date of the dissolution The ap-
! pointment of a receiver is the excep-
| ton, not the rule. and is not to be
made unless some party interested,
either a creditor or a stockholder. can
show that for the protection of his
rights the appointment of a receiver
| and the administration of the assets
under the control and superintendence
of the Court of Equity is necessary"
| Conceding that under the provisions
of the Building and Loan Commission
ers Act above quoted a receiver may
| be appointed. it does not follow that
the appointment was authorized under
| the facts of this case The State is
neither creditor nor stockholder.
and has no pecuniary interest in the
| association. 1t is neither alleged nor
found that there was any fraud or
mismanagement on the part of the di-
| rectors or officers of the corporation.
or any want of competency on their
part to liquidate and settle up it's busi-
ness and affairs economically and in the
interest of its creditors and stNkhold-
ers. so that If this application had been
made by creditor or stockholder. the
facts alleged and found would not have
justified the appointment of a re-
ceiver; and unless such facts are al
legged and found as would justify the
appointment at the instance of a cred
itor or stockholder. it cannot be made
at the instance of the State under said
Statute
The notice Of the appeal is to the eff
feet that it is taken from the whole of
the judgment but appellants say that
no point is made against the judgment
enJoining the association from the fur
ther prosecution of its business
For reasons given in the foregoing
opinion the judgment appealed from is
hereby modified by eliminating there
from the order appointing a receiver,
and all the provisions thereof relating
to such receivership. and as so modi-
fed the judgment is affirmed