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Petition for injunction. Before Judge Atkinson. Chatham Superior Court. March 29, 1954.
WYATT, Presiding Justice.
It was not error to overrule a general demurrer in this case.
William V. Tyson, Jr., filed his petition in equity against Garden City Cab Company, a corporation, and Robert L. Turner, in which it is alleged in substance: that the defendant corporation ceased to exercise its franchise and to conduct the corporate business on or about May 1, 1953; that Robert L. Turner is the president of said corporation; that, "in addition to being president of said Cab Company, the said Robert L. Turner is the principal, if not the sole, stockholder of said Cab Company"; that on December 9, 1953, plaintiff obtained a judgment in the City Court of Savannah against the said Cab Company in the sum of $2,100; that the sheriff has returned a nulla bona on the execution; that it is believed the Cab Company is insolvent; that about May 1, 1953, the Cab Company sold the majority, if not all, of its assets, the amount of the purchase price being known to defendants but unknown to plaintiff; "that your petitioner believes that the said Robert L. Turner and the other stockholders of said corporation if any there be, has appropriated the proceeds . . . of the sale . . . and remaining corporate assets, if any, to his individual use . . . The said Robert L. Turner having appropriated said corporate assets to his own use . . . is therefore trustee ex maleficio as to the corporate assets."
The prayers of the petition as amended were for injunction against the Cab Company, for an accounting as to both defendants, and for judgment against the defendant Turner for the amount due on the execution. A general demurrer to the petition filed by the defendant Turner was overruled. The exception here is to that judgment.
1. "A petition in equity, in which a corporation and an individual are named as defendants, alleging that the plaintiff is a creditor of the corporation, which is now insolvent, and that the individual has converted to his own use assets of the corporation in excess of the amount of the plaintiff's claim, leaving no other assets sufficient in amount with which to pay the corporate debt, and which suit seeks to hold liable the individual as a trustee ex maleficio, states a cause of action." Millers Nat. Ins. Co. v. Hatcher, 194 Ga. 449 (2) (22 S. E. 2d 99). See also cases there cited.
It is contended by the plaintiff in error that the above-stated principle of law is not applicable in the present case for the reason, "It is necessary for the defendant in error to show in his petition that officers of the corporation, including the plaintiff in error had actual notice of the debt and that there was a pending suit by defendant against the corporation at the time of the sale of the corporate assets." Tatum v. Leigh, 136 Ga. 791 (72 S. E. 236, Ann. Cas. 1912D, 216), is relied upon as sustaining this position. That case does not so hold. The factual situation in the Tatum case was as the plaintiff in error contends it must be. While the facts in that case were as it is contended they must be, the decision nowhere says that these faces must exist.
2. It is contended by the plaintiff in error that the petition does not allege as a fact that Turner converted the assets of the corporation to his own use, but only that the plaintiff in the court below believes that he did so. Nance v. Daniel, 183 Ga. 538 (189 S. E. 21); Bowers v. Dolen, 187 Ga. 653 (1 S. E. 2d 734); Millers Nat. Ins. Co. v. Hatcher, 194 Ga. 449, supra, and other cases, holding in effect that the pleader must allege the fact on information and belief and not that he is informed and believes that the fact exists, are relied upon by the plaintiff in error to sustain him in this position. Conceding, but not holding, that this principle of law is applicable under the peculiar facts of this case, the pleading in the instant case is not subject to this criticism. While it is true the paragraph of the petition dealing with this question begins with the allegation, "Your petitioner believes . . .", nevertheless, later in the same paragraph the following allegation appears, "the said Robert L. Turner, having appropriated said corporate assets to his own use." Under the facts of this case, we construe this to be a positive allegation.
It appears from what has been said above, it was not error to overrule the general demurrer.
Judgment affirmed. All the Justices concur.
Ralph L. Crawford, contra.
Sullivan & Maner, for plaintiff in error.
Saturday May 23 03:52 EDT

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