Carter v. Parrish

• Decision Date: 18 November 1922
• Docket Number: 3275.
• Citation: 114 S.E. 709,154 Ga. 531
• Parties: CARTER ET AL. v. PARRISH ET AL.
• Court: Georgia Supreme Court

114 S.E. 709

154 Ga. 531

CARTER ET AL. v. PARRISH ET AL.

No. 3275.

Supreme Court of Georgia

November 18, 1922

Syllabus by the Court.

Creditors of an insolvent corporation filed a suit for injunction and receiver. Other creditors intervened, praying judgment against the organizers of the corporation as partners, under Civil Code 1910, § 2220, which provides as follows "Persons who organize a company and transact business in its name, before the minimum capital stock has been subscribed for, are liable to creditors to make good the minimum capital stock with interest." A verdict for the plaintiffs was returned. The defendants made a motion for a new trial on the general grounds, and subsequently amended the motion. The motion being overruled, the defendants excepted. Two of the grounds of the motion raised the same issue, to wit, that the court erred in instructing the jury as follows: "That prior to the organization of a corporation the organizers may make provisional contracts for the benefit of the corporation, which may become binding upon the corporation after it does become organized; but in the meantime and until the corporation is legally organized the promoters are liable as partners. The law does not require that the minimum stock specified in the charter be paid in until it is formally organized; but until it is formally organized and the minimum capital stock paid in the organizers are liable as partners." The criticism is that the court charged the jury that the minimum capital stock must be "paid in" before the organizers begin to transact business, instead of the instruction that the minimum capital stock must be "subscribed" before the organization and transaction of business. It is further shown that the same expression was used several times in the course of the court's instruction to the jury. It is also shown that at the end of the charge, after giving the jury the forms of the verdict, the court undertook to correct the mistake, using the following language: "In making my charge to you I used the words, in referring to the capital stock, I said the full amount paid, when I should have said the full amount subscribed. Any corporation stockholders are liable to outsiders as partners for the amount not subscribed up to the minimum of the capital stock to be subscribed." On the hearing in this court the defendant in error moved to dismiss the writ of error on the grounds (a) Because the bill of exceptions was not presented for certification within the time prescribed by law; (b) because no defendants in error are specifically named; (c) because certain exceptions pendente lite were signed 25 days after the motion for a new trial was overruled; (d) because the bill of exceptions is a carbon copy, and not the original.

Held: The motion to dismiss the writ of error is denied.

(a) The bill of exceptions shows that it was presented for certification within the time prescribed by law, and was held by the judge, as appears by his certificate. Civ. Code 1910 § 6187.

(b) The bill of exceptions will not be dismissed on this ground because the defendants in error can be supplied from...