
    (52 South. 763.)
    No. 18,162.
    STATE ex rel. GUION, Atty. Gen., v. PEOPLE'S FIRE INS. CO. OF NEW ORLEANS.
    (April 11, 1910.
    On the Merits, June 6, 1910.)
    
      (Syllalms Tiy Editorial Staff.)
    
    1. Insurance (§ 49*) — Dissolution of Company — Proceedings—Appeal—Interest of State as Appellant.
    Acts 1908, No. 124, provides that, whenever suit is brought by the state to fui-feifc the charter of a corporation, the court shall have jurisdiction of all the property belonging to it from the date of filing" suit and that on rendering a decree of forfeiture, the court shall order the-sequestration of the property and delivery thereof to a liquidator appointed by the Governor. Held, that where, in a suit by the Attorney General for dissolution of an insurance company, the court decreed a forfeiture, but directed that the property be delivered to liquidators chosen by the stockholders, pursuant to the corporation’s charter, the state had a sufficient interest to entitle it to appeal from the judgment, in so far as it denied the state’s right to have the property turned over to a liquidator to be appointed by the Governor.
    [Ed. Note. — For other cases, see Insurance, Dee. Dig. § 49.*]
    2. Appeal and Error (§ 801*) — Motion to Dismiss — Questions Reviewable.
    Where, in proceedings on the relation of the Attorney General to dissolve an insurance company, the state appealed from a judgment of dissolution, in so far as it directed a delivery of the corporation’s property to liquidators appointed by the stockholders, whether the state was entitled to have the property delivered to a liquidator appointed by the Governor was a question involving the merits which could not be determined on motion to dismiss the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 801.*]
    3. Appeal and Error (§ 50*) — Jurisdiction —Amount in Controversy.
    Jurisdiction of the Supreme Court in a contest over the administration of a fund is determined by the amount of the fund to be administered.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 50.*]
    
      4. INSURANCE (§ 49*) — Dissolution op Company — Sequestration op Property — Delivery to Liquidator.
    Acts 1908, Ño. 124, provide that, whenever suit is brought by the state to forfeit a corporation’s charter, the court shall have jurisdiction of all the corporation’s property from the date of filing the suit, and that pendente lite the court may have the property sequestered, and, if the corporation in such case is a going concern, the sheriff shall hold and administer as a receiver, and that, on rendering the decree of forfeiture, the court shall “order the sequestration of the property and the delivery of it to a liquidator to be appointed by the Governor.” Meld, that the statute in so far as it requires delivery of the property to a liquidator appointed by the Governor is mandatory, and that, on the forfeiture of the charter of an insurance company at the suit of the Attorney General, the court erred in directing a delivery of the corporation’s property to liquidators appointed by the stockholders under a dissolution by vote of the stockholders pursuant to the charter, adopted after the forfeiture suit was instituted.
    [Ed. Note.' — For other cases, see Insurance, Dec. Dig. § 49.*]
    5. Corporations (§ 619*) — Forfeiture op Franchise — Dissolution—Proceedings by State — “Jurisdiction.”
    Under Acts 1908, No. 124, providing that, whenever suit is brought by the state to forfeit a corporation’s charter, the court shall have jurisdiction of all the corporation’s property from the date of filing the suit, the word “jurisdiction,” as there used, meant legal control and seisin, so that voluntary dissolution proceedings taken by the stockholders of a corporation, after suit brought iby the Attorney General to forfeit its charter, were ineffectual to authorize liquidation by the. corporation’s liquidators, instead of by a liquidator to be appointed by the Governor.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 619.*
    For other definitions, see Words and Phrases, vol. 4, pp. 3876-38S5; vol. 8, pp. 7697, 7698.]
    6. Corporations (§ 592]4*) — Dissolution-Charter and Statutory Provision.
    Where a corporation was organized after the passage of Acts 1908, No. 124, regulating the dissolution of corporations by suit on relation of the Attorney General to forfeit its charter, and distribute its assets, such act must be read into the charter and is paramount to provisions therein for liquidation of the corporation’s charter.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 5921/2.*]
    Appeal from Civil District Court, Parish, of Orleans; Fred D. King, Judge.
    Suit by the State on the relation and information of Walter Guión, Attorney General, against the People’s Fire Insurance Company of New Orleans. Judgment for re-' lator for less than the relief demanded, and he appeals. Motion to dismiss appeal, denied.
    Judgment reversed in part' and remanded.
    See, also, 52 South. 120, 125 La. 983.
    Walter Guión, Atty. Gen. (R. G. Pleasant, of counsel), for appellant. Meyer S. Drei-fus, for appellees.
   PROVO STY, J.

The state brought this suit to forfeit the charter of the defendant corporation, and to enjoin it from doing any further business, and added a prayer that the court, as required by Act No. 124 of 1908, p. 181, cause the property of the defendant corporation to be sequestered, and, upon rendering judgment of forfeiture, order the sheriff “to turn over the property ta the liquidator appointed by the Governor.’1

The court decreed the forfeiture and perpetuated the injunction; but, instead of complying with the said Act No. 124 of 1908, directed the property, to be delivered to the liquidators whom the stockholders of the defendant corporation had chosen, in pursuance of the charter of the corporation, to liquidate its affairs.

The appeal is by the state. The defendant corporation and the liquidators have asked that it be dismissed. Their grounds are that the state is not aggrieved by the judgment, and has no pecuniary interest in the appeal; and that, if she has, her appeal was taken after the expiration of the legal delays within which an appeal could have been taken legally, and that, at all events, this court has no jurisdiction, there not being $2,000 involved, and the case not presenting any one of the special features which confer jurisdiction on this court irrespective of amount involved.

Appellees say that the only interest the state had in the suit was to forfeit the charter and prevent the defendant corporation from doing any further business, and that that interest has been fully satisfied by the judgment appealed from, which has forfeited the charter and perpetually enjoined the defendant corporation from doing business; that the evidence shows that the corporation owes no debts, and had ceased to do business and gone into liquidation before the filing of this suit; and that, under these circumstances, the liquidation is a matter of purely private concern, the mere private business of the stockholders, in which the state has no interest. In support of that view the cases of State v. Herdic Coach Co., 35 La. Ann. 245, State ex rel. Debenture Co. v. Judge, 51 La. Ann. 466, 25 South. 65, State v. Debenture Co., 107 La. 562, 32 South. 102, and Stark v. Burke, 5 La. Ann. 740, are cited.

The reply is that, if the state has the right to require that the sheriff be ordered to turn over the property to the liquidator to be appointed by the Governor, she has an interest in appealing from the judgment which denies that right, and that the question of whether she has the right or not is one involving the merits of the case, and properly to be considered when the case comes to be considered on its merits, and not on motion to dismiss.

The suggestion that the appeal has been taken too late is based on the assumption that the suit has been brought under Act No. 159 of 1898, whereas it has been brought under Acts No. 124 of 1908, No. 224 of 1902, and section 741, Rev. St., and the appeal is governed by Act No. 106 of 1908 and other laws.

The jurisdiction of this court in any contest over the administration of a fund is determined by the amount of the fund to be administered. State ex rel. Bellamore v. Rombotis, 120 La. 152, 45 South. 43; Succession of Welp, 120 La. 64, 44 South. 921. In this case the fund largely exceeds $2,000.

The motion to dismiss is denied.

On the Merits.

Section 3 of Act No. 105 of 1898, as amended by Act No. 50 of 1902, provides that, if “the whole of the capital stock” of an insurance company “shall not be paid for in twelve months from the date of its charter, its charter shall be forfeited.”

Act No. 124 of 1908 provides that:

“Whenever a suit is brought by the state to forfeit the charter of any corporation, or pretended corporation, the court shall be considered to have jurisdiction of all the property belonging to such corporation from the date of the filing of the suit.”

The statute goes on to provide that pen-dente. lite the court' “may” have the property sequestered, and that, in such case, “if the corporation is a going concern, the sheriff shall hold and administer as a receiver.”

The statute further provides that on rendering a decree of forfeiture the court (not “may,” but) “shall” order the sequestration of the property, and the delivery of it to a liquidator to be appointed by the Governor.

The present suit is by the Attorney General in the name of the state under said statutes. The prayer is for a forfeiture, and for the delivery of the property to a liquidator to be appointed by the Governor. There was a sequestration pendente lite.

The defendant in its answer admitted that its capital stock had not been paid, but went on to allege that two days after the filing of the suit the corporation had been dissolved by a vote of the stockholders at a meeting duly held for that purpose, and liquidators appointed, all in pursuance of the charter, and that the court should order the property delivered to these liquidators, and not to a liquidator to be appointed by the Governor.

The liquidators elected by defendant intervened, and asked that their appointment be confirmed, and that the property be ordered delivered to them.

The court decreed the forfeiture; but, instead of obeying the injunction of said Act No. 124 of 190S that the property shall he turned over to the liquidators to he appointed hy the Governor, it ordered the property turned over to the interveners.

This was on the theory advanced hy the defendant that the statute has application only to cases in which there has been a judgment of forfeiture, and that the instant case does not present that feature, because the corporation had been dissolved before the rendition of said judgment, and hence at the date of said judgment there was no charter to he forfeited, and as a consequence there could not be a forfeiture.

We think the court erred. The statute is imperative. No discretion whatever is left to the court. A sequestration must issue when a judgment of forfeiture is rendered, if not already issued, and the sheriff must turn over the property to the liquidator appointed by the Governor.

If, for argument’s sake, defendant’s contention were conceded, that at the date of the rendition of the judgment there was no charter to forfeit, and hence no judgment of forfeiture could validly be rendered, the logical conclusion would be that, instead of rendering a judgment of forfeiture, the court should have dismissed the suit praying for the forfeiture.

But the court did not do that. Far from it, it decreed the forfeiture. The court should either have dismissed the suit, or, on rendering the judgment of forfeiture, complied with the imperative injunction of the statute.

Defendant’s said contention that a valid judgment could not he rendered because the corporation had already been dissolved, and hence there was no charter to be forfeited, resolves itself into a denial of the validity of the judgment of forfeiture. But manifestly, if this judgment of forfeiture was invalid, defendant’s remedy was to have it set aside hy appeal or by answer to the present appeal; and defendant has not resorted to either of these remedies.

We will add, however, though not really involved in this appeal, that the judgment of forfeiture was properly rendered. A suit by the Attorney General in the name of the state for the forfeiture of the charter of a corporation cannot he vacated, or the action of the court in it forestalled, by any action on the part of the stockholders of the corporation. The legal status becomes fixed as of the date of the filing of the suit. This is what the statute means when it says that “the court shall have jurisdiction of all the property of the corporation from the date of the filing of the suit.” “Jurisdiction” here means legal control and seisin. The court is not bound to take actual possession by sequestration, but it may do so. Let it be noted that it is not of the suit the court is thus said to have “jurisdiction”; hut of “the property.”

By such suit the state seeks to protect the public in two ways: First, by forfeiting the charter of the offending corporation; and, secondly, by taking charge of its property, and liquidating its affairs. The idea that the suit can be nullified or forestalled by the stockholders making haste and voting the dissolution of the corporation is hot to be entertained.

That the dissolution of the corporation does not vacate a suit such as the present one, see Platt v. Archer, 9 Blatchf. 559, 19 Fed. Cases, p. 834, No. 11,213. That was a case in bankruptcy; hut the underlying principle is the same.

We are not sure that defendant is to he understood as contending that the charter provisions for the liquidation of the defendant corporation override the statutory provisions hereinabove referred to. Such a contention would ignore the fact that these statutes were already in existence when the defendant corporation was organized, and must therefore be read into the charter, and are necessarily of paramount authority.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside in so far as dissolving the sequestration, appointing liquidators, and ordering the sheriff to deliver the property to the liquidators so appointed, and that it be in other respects affirmed, and that the sequestration be reinstated, and the case be remanded to be proceeded with according to law, costs of appeal to be paid by appellees.  