Jennings v. Automobile Sales Co.

• Decision Date: 16 July 1917
• Docket Number: 9766.
• Citation: 93 S.E. 188,107 S.C. 514
• Parties: JENNINGS ET AL. v. AUTOMOBILE SALES CO. ET AL.
• Court: South Carolina Supreme Court

93 S.E. 188

107 S.C. 514

JENNINGS ET AL. v. AUTOMOBILE SALES CO. ET AL.

No. 9766.

Supreme Court of South Carolina

July 16, 1917

Appeal from Common Pleas Circuit Court of Greenwood County; Frank B Gary, Judge.

Action by A. H. Jennings and others against the Automobile Sales Company and others. From an order appointing a receiver defendants appeal. Order affirmed.

Tillman & Mays, of Greenwood, for appellants.

Grier Park & Nicholson, of Greenwood, for respondents.

FRASER J.

This is an appeal from an order appointing a receiver. The complaint alleges that the defendants Automobile Exchange and Automobile Sales Company are indebted to the plaintiffs in various sums; that the Automobile Exchange is a copartnership, and Automobile Sales Company a corporation that both concerns are insolvent, and that the affairs of the two are intermingled; that the copartnership is composed of B. A. Hawkins and C. T. Jones, and the stockholders of the corporation are B. A. Hawkins, C. T. Jones, M. F. Sanders, and J. E. Summers; that Hawkins is the manager of both concerns, and they occupy the same building; that but little of the capital stock of the corporation has been paid in, or even called for; that the corporation has executed to Mr. Sanders, one of its stockholders, a mortgage covering its property, and Mr. Sanders is proceeding to foreclose the mortgage. The return alleges that the affairs of the two concerns are kept separate, and that the corporation is not liable for the debts to the plaintiffs. One of the affidavits attached to the return admits that the Automobile Exchange is insolvent; but the return and affidavits deny the insolvency of the Automobile Sales Company, but do not make any effort to show solvency. From the order appointing the receiver, the defendants appeal.

The appellant's argument is mainly on the facts. Appellant says: The case establishes the following facts:

"(1) The Automobile Sales Company is not insolvent."

In Wagener v. Pape, 46 S.C. 251, 24 S.E. page 342, we find:

"As to the third ground of appeal, we cannot say that the evidence before the circuit judge was overwhelming that the defendant, Pape, was not insolvent. If a man is able to pay his debts, it is very easy to prove it. An assertion on one side of insolvency, in connection with confessions of judgment for over $1,200, lodged in the clerk's office, over the goods and chattels of a tottering merchant of small

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