Thornley v. J. C. Walsh Co.

Loring, J.

This is an appeal from a final decree appointing a receiver of the property of a Rhode Island corporation in a proceeding ancillary to a similar proceeding and appointment of the same person as permanent receiver by the Superior Court of that State.

The decree should have, directed the receiver here not to transmit the Massachusetts assets to himself as receiver in Rhode Island until provision had been made for attaching creditors in Massachusetts. Second National Bank v. Lappe Tanning Co. 198 Mass. 159. Borden v. Enterprise Transportation Co. 198 Mass. 590. It should be modified accordingly.

The appellant has argued a question as to the exclusion of: evidence set forth in an offer of proof stated in findings of fact made by the judge who heard the petition “ in accordance with, the provisions of section 23 of chapter 159 of the Revised Laws.” These findings of fact were made more than five months after the final decree here appealed from had been entered.

That question is not properly before us. The only way of presenting such a question to this court is by a bill of exceptions, if an exception to the exclusion of the evidence was taken at the.trial, or by a reservation under R. L. c. 159, § 29.

There is nothing however in the contention of the defendant in this connection. His contention is that as matter of law a creditor of an insolvent foreign corporation cannot maintain an ancillary petition against it in the courts of this State where the foreign corporation has not complied with St. 1903, c. 437, § 58; and where the creditor who applies here applied for the appointment in the home State, was the attorney of the insolvent corporation, made the application at the solicitation and with the consent of the corporation, and was himself appointed the receiver. The appellant’s argument is that since the corporation under those circumstances has no standing in the courts of the Commonwealth, (as to which see National Fertilizer Co. v. Fall River Bank, 196 Mass. 458; Friedenwald Co. v. Warren, 195 Mass. 432,) the attorney of the corporation who applies at its solicitation and with its consent has no greater right. If the application had been made by the plaintiff as the attorney of the insolvent corporation the conclusion urged by the appellant perhaps would have followed. But the petition here in question was made by the plaintiff as a creditor, not as the attorney of the insolvent corporation. The evidence stated in the offer of proof would have gone no farther than to raise a question as to the good faith of the proceeding, and it was so treated by the judge. He states in his finding of facts: “ I ruled that the facts stated in the offers of proof were not conclusive as matter of law and determined that, if proved, I should still upon the whole case grant the petition.”

The decree must be modified by providing that the receiver appointed here is not to transmit to Rhode Island the assets received here until provision is made for attaching creditors in Massachusetts. So modified the decree is affirmed.

So ordered.