Porter v. Sabin - 149 U.S. 473 (1893)
U.S. Supreme Court
Porter v. Sabin, 149 U.S. 473 (1893)
Porter v. Sabin
Argued April 19-20, 1893
Decided May 15, 1893
149 U.S. 473
After a state court has appointed a receiver of all the property of a corporation, and while the receivership exists, stockholders of the corporation cannot bring a suit against the officers in a court of the United States for fraudulent misappropriation of its property without making the receiver, as well as the corporation, a party to the suit, although the state court has denied a petition of the receiver for authority to bring the suit, as well as an application of the stockholders for leave to make him a party to it.
This was a bill in equity, filed September 9, 1887, and amended January 7, 1888, in the Circuit Court of the United States for the District of Minnesota, by Henry H. Porter and Ransom R. Cable, citizens of Illinois, and stockholders in the Northwestern Manufacturing and Car Company, a corporation of Minnesota, in behalf of themselves and of all other stockholders in that corporation, against Dwight M. Sabin, its former President, and Joseph C. O'Gorman, its former auditor and treasurer, and both citizens of Minnesota. The amended bill made that corporation and the Minnesota Thresher Manufacturing Company, also a corporation of Minnesota, parties defendant, and alleged, in substance, as follows:
That Sabin and O'Gorman, as such officers of the Northwestern Company, during the period from 1882 to May 10, 1884, had the entire control and management of its business, and without the authority or knowledge of the corporation, or of its board of directors, or of these plaintiffs, fraudulently issued large amounts of its commercial paper for the benefit of other companies, and, in order to conceal their fraudulent transactions, made false entries in the books of the corporation by reason of all which it became insolvent, and its capital was wholly lost.
That on May 10, 1884, upon proceedings commenced against the corporation by some of its creditors in a court of the State of Minnesota, Edward S. Brown was appointed receiver of its estate and effects, and had since had the custody and possession thereof.
That on September 6, 1887, the plaintiffs caused to be presented to the state court a petition of the receiver stating that he had been requested by the plaintiffs and others to commence a suit against Sabin and O'Gorman to recover from them such sums of money, and the value of such property, as had been lost to the corporation by their official misconduct, and did not deem it expedient to do so without the sanction of the court, and praying the court to make such order in the premises as it might deem expedient. That the petition of the receiver was opposed by a majority of the stockholders of the corporation, acting under the influence and in the interest of Sabin and O'Gorman, and was denied by the court.
"That because of the unauthorized and fraudulent acts of said officers as aforesaid and of the loss sustained by the Northwestern Manufacturing and Car Company in consequence thereof, a right of action exists in favor of said corporation against said officers to recover the amount of such loss. That upon the appointment of a receiver of said corporation as aforesaid, such receiver was primarily the proper person to bring such a suit. That having made application to said receiver to bring such suit, which application has been duly presented to the court, and authority to bring such action having been refused,"
"acting in their own behalf and in behalf of the other stockholders of said corporation, if they should choose to come in and be made parties to these proceedings, have the right to maintain said action for the common benefit of all parties interested in the result thereof."
That after the filing of the original bill, and on the same day, the plaintiffs applied to the state court for an order permitting the receiver to be made a party to the bill. That the application was opposed by Henry D. Hyde, claiming to represent creditors and stockholders, and particularly the
Minnesota Thresher Manufacturing Company, and that the court denied that application, as well as a further application then made by the plaintiffs to exclude from a contemplated order of sale then pending before it the cause of action set out in the bill and all other actions which stockholders might maintain in right of the corporation.
That the Northwestern Company had never been dissolved by any legal authority, and was still in existence, but that all its property and tangible assets had been placed in the hands of the receiver appointed by the state court, and, under an order of that court, had been sold by public auction as a whole and delivered to the purchaser.
That the Minnesota Thresher Manufacturing Company was organized under a general statute of Minnesota for the purpose of purchasing at judicial sale all the stock and assets of the Northwestern Company, including its goodwill, and of continuing the business of that company except the manufacture of cars. That Sabin and O'Gorman, for the purpose of suppressing inquiry into their official acts and misconduct, obtained control of the direction and management of the Minnesota Company and procured that company to apply to the state court for an order directing the sale of the assets and rights of action of the Northwestern Company as a whole. That the court, notwithstanding the plaintiffs
"protested against such sale of all of said assets, and particularly the sale of such rights of action as the stockholders would have a right to maintain in the name of said corporation if the corporation itself was unable or unwilling to do so, or if the receiver was not authorized to do so,"
made an order for the sale of the entire assets of the corporation, as a whole, described in the order of sale as follows:
"All the stock, property, things in action, and effects of the defendant the Northwestern Manufacturing and Car Company, of which E. S. Brown has been appointed receiver in this action, or to which the receiver may be entitled, as the same shall exist at the time of such sale, including all real estate, buildings, machinery, tools, patterns, fixtures, materials, articles manufactured, unmanufactured, or in process of manufacture, cash
in hand, book accounts, letters patent, choses in action, bills receivable, and all other property, assets, claims, liens, and demands of every name and nature, either in law or equity, and wherever situate."
That said property was accordingly sold on October 27, 1887, to Hyde, as agent and trustee for the Minnesota Company, for the sum of $1,105,000. That the court afterwards confirmed the sale and directed the receiver, upon payment of the purchase money, to deliver to the purchaser all the assets included in the order of sale which had not yet been delivered, and that the Minnesota Company was a party to the fraudulent scheme of Sabin and O'Gorman, and was not a purchaser in good faith, and acquired no title to the right of action involved in this suit.
"That the rights of action involved in this suit are of such a character that they can only be prosecuted by the corporation or its receiver, or some one or more of its stockholders, and that it is not such an action or right of action as the corporation itself, or its receiver, acting under the direction of the court, could sell or transfer to a purchaser so as to qualify such purchaser with the right to maintain such action and thereby deprive the stockholders of their rights in the premises."
The bill prayed for an account against Sabin and O'Gorman and for payment and distribution of the sums thereupon found due, and that the Minnesota Company be declared to have no interest in this cause of action, or at most, an interest subordinate to that of the plaintiffs and other stockholders who might become parties, and for further relief.
The defendants demurred to the bill: 1st., for want of jurisdiction, because the state court which appointed the receiver was the only court having jurisdiction in the premises; 2d., for want of equity; 3d., because the receiver was a necessary party.
The circuit court sustained the demurrer and dismissed the bill. 36 F. 475. The plaintiffs appealed to this Court.