The Mayor And Council Of The City Of Macon v. Cummins

• Decision Date: 31 July 1872
• Citation: 47 Ga. 321
• Parties: THE MAYOR AND COUNCIL OF THE CITY OF MACON, plaintiff in error. v. HENRY CUMMINS et al., defendants in error.
• Court: Georgia Supreme Court

47 Ga. 321

THE MAYOR AND COUNCIL OF THE CITY OF MACON, plaintiff in error. v. HENRY CUMMINS et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

(Warner, C. J., did not preside in this case.)

Removal of cause. United States Court. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.

The Mayor and Council of the city of Macon filed their bill against Henry Cummins, Cosmore G. Bruce, Benjamin Field, Henry W. DePuy, of the State and county of New York, and John T. Snead and Alfred Iverson, jr., of the county of Bibb, all of said defendants being stockholders, officers and agents of a pretended company, known as the "Armory Cotton Manufacturing Company;" against Maxwell, Grier, Masterson, the clerk of the Superior Court, the sheriff, and the constables of the county of Bibb. Substantially, the following case was made:

In the month of May, 1870, complainant was possessed of a piece of real estate in the city of Macon, known as the "Macon Armory, " of the value of $250,000 00. In order to dispose of said property in a manner that would be productive *of benefit to said city, on the 27th day of said month and year, complainant entered into a contract with said pretended "Armory Cotton Manufacturing Company, " by which said company, in consideration of the transfer to them of said premises, with the buildings thereon, undertoork to complete said buildings, and in a reasonable time to fit up the same with proper machinery, and to begin the business of manufacturing cotton, and to issue to the city of Macon paid up stock in said pretended company to the amount of $75,000 00. The company pretended to be incorporated under a charter obtained in the State of New York. The premises and buildings aforesaid were transferred in accordance with the provisions of said contract. In prosecution of a fraudulent design to obtain the control and possession of said property for private speculation, said company delayed an unreasonable time before commencing work on said buildings, but finally the defendants, Snead and Iverson, were appointed to begin and superintend the repairs and completion of the same. For several weeks past, the work of "preparing to begin" has been progressing, and an expense has been incurred for material and wages of mechanics and laborers of between $3,000 and $4,060. Other claims against said company will increase the indebtedness to over $5,000. Of this amount, only about $100 has been paid by said company, but, on the contrary, a draft for $3,000, drawn by the defendant, Snead, upon said company, for the purpose of applying the proceeds to said indebtedness, was returned unpaid and protested. The laborers have abandoned the work, and are suing out attachments, etc., for their wages. The superintendent, Snead, has also abandoned the same, and has been absent for three or four weeks. Complainant has been informed that said company has been endeavoring to sell said property to other parties, and here charge this to be their design. By said pretended charter, said defendants, Bruce, Cummins, Field, DePuy, Snead, and Iverson, were appointed trustees for the management of the affairs of said company for the first year; but, so far ascomplainant is advised, said trustees have never had a meeting; the company has never adopted *any by-laws, nor communicated the same to complainant, but, on the contrary, said corporators have done nothing towards carrying out the objects of their incorporation, or their contracts thereunder, but have confined themselves wholly to their efforts to defraud complainant out of said property.

Under the foregoing facts complainant has been advised that said defendants have forfeited their right to said property, as the deed under which they hold the same provides, that if their undertaking is not complied with in a reasonable time after the date thereof, the indenture is to "stand canceled." Under this belief, complainant has demanded of said defendant, Iverson, the agent of said pretended company, possession of said property, which he has refused to deliver. Iverson has a claim against said pretended company for his salary since the date of said contract, at the rate of $2,500 00 per annum, and is about to levy a laborer's lien for the same upon said property. Complainant charges that he is a salaried officer, and not entitled to a laborer's lien. Grier & Masterson have attached said property for $130 00 claimed to be due them. Maxwell has a claim against said company for lumber sold, amounting to 31, 130 97, and has also attached. As said property in realty belongs to complainant, it is, in interest, the sole party defendant to said various suite

Prayer, that said deed may be delivered up to be canceled; that said corporators of said pretended company may be compelled to reimburse complainant for all amounts which it may be compelled to pay towards the debts of said pretended company for the protection of said property; that the corporators of said pretended company be enjoined from selling or encumbering the same; that all creditors, other than laborers and mechanics, be enjoined from proceeding against said property except as parties defendants to this bill; that the sheriff and constables of the county of Bibb be enjoined from levying any liens or attachments...