Royall v. Carr Lumber Company, Inc.

105 S.E.2d 65 (1958)

248 N.C. 735

Ethel Litz ROYALL, William C. Carr and Frances E. Carr, v. CARR LUMBER COMPANY, Inc.

No. 23.

Supreme Court of North Carolina.

September 24, 1958.

*67 Hamlin & Hayworth and Potts & Ramsey, Brevard, and Ward & Bennett, Asheville, for petitioners, appellants.

Thomas R. Eller, Jr. and Cecil J. Hill, Brevard, for the receivers.

JOHNSON, Justice.

The only errors assigned by the appellants are (1) that the court erred in refusing to allow the motion to vacate the consent order on the ground that the consenting parties had no authority to consent, and (2) that the court erred in signing the judgment sustaining the consent order.

It is not necessary for us to decide whether the consenting parties had authority to consent to the order of Judge Farthing placing the corporation in receivership. This is so for the reason the order expressly recites it was entered in the discretion of the court, and under applicable statutes the court had full discretionary power and authority to enter the order. These are the applicable statutes:

1. "The superior court shall have power to liquidate the assets and business of a corporation in an action by a shareholder when it is established that: * * * (4) Liquidation is reasonably necessary for the protection of the rights or interests of the complaining shareholder." Ch. 1371, s. 1, P.L.1955, now codified as G.S. §§ 55-125(a) (4), 1957 Cumulative Supplement.

2. "When a corporation * * * is in imminent danger of insolvency, * * * a receiver may be appointed by the court under the same regulations that are provided by law for the appointment of receivers in other cases; * * *" G.S. § 1-507.1.

True, Judge Farthing's order contains no findings of fact in support of the decree placing the corporation in receivership. Nevertheless, where, as here, an order appointing receivers is made without specific findings of fact and without any request for findings, it will be presumed that the judge accepted as true for the purposes of the order the facts alleged in the complaint, used as an application for receivership. See Whitehead v. Hale, 118 N.C. 601, 24 S.E. 360; McIntosh, North Carolina Practice and Procedure, Second Edition, Sec. 2258. Here, the complaint contains allegations that (1) "* * * the defendant has not sold any lumber acquired or manufactured by it in several years at an overall profit; that all over-all operations have been at a substantial loss to the defendant and the operations now in progress continue to deplete the assets of the company in the sum of approximately $10,000 per month, and if allowed to continue will destroy the value of the assets and seriously damage the stockholders," (2) That in the year 1957 the corporation sustained a net operating loss of more than $96,900, and for the first four months of 1958 a like loss of more than $45,000; and (3) "That because of the manner in which the company has been operated by those now in charge it is in imminent danger of becoming insolvent; * * *" The foregoing allegations and others of like tenor suffice to uphold Judge Farthing's discretionary order placing the corporation in receivership, and sustain Judge Pless' ruling in refusing to set the order aside.

The proceedings below, of course, are without prejudice to the rights of the interveners to petition the court, if so advised, to discontinue liquidation of the corporation *68 under G.S. § 55-128 (1957 Cumulative Statute).

Affirmed.

PARKER, J., took no part in the consideration or decision of this case.