LOUIS MITCHELL, APPELLANT,
v.
ITALIAN-AMERICAN CLUB, A BENEVOLENT AND FRATERNAL CORPORATION, NOT FOR PROFIT, ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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A member of a non-profit corporation petitioned for dissolution, alleging the corporation was defunct with only cash assets remaining. The trial court granted the corporation's motion to dismiss for lack of subject matter jurisdiction, and the appellate court affirmed, holding that the statute in effect at the time of filing did not permit judicial dissolution at the suit of a member absent fraud or charter violations.
The court affirmed the dismissal, holding that under the statute in effect at the time the petition was filed (July 2, 1959), dissolution of a non-profit corporation could only be achieved through action of the corporation itself, and no statutory provision existed for judicial dissolution at the suit of a member absent fraud, collusion, or facts supporting charter termination.
“the statute relating to dissolution of such corporations, § 617.-05, Fla.Stat., F.S.A., as it stood on July 2, 1959, when the petition was filed, made provision for dissolution only through the action of the corporation”
Establishes the legal basis for the decision—the statute in effect at the time of filing permitted only corporate self-dissolution, not member-initiated dissolution
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Join FLexlaw to unlock all legal intelligenceLouis Mitchell, a member of the Italian-American Club, filed a petition to dissolve the non-profit corporation, alleging it had ceased to function, ha…
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The appellant Louis Mitchell filed a petition in the circuit court in Dade County to dissolve the defendant non-profit corporation, of which he was a member, alleging it had ceased to function, had an aging and dwindling membership and had as its only asset certain cash in excess of $50,000, being the proceeds received two years earlier when its club house was disposed of. A motion to dismiss filed by the defendant corporation was granted, and this appeal is from that interlocutory order.1 Although final in form, we treat the appeal as interlocutory.
Assuming but not deciding that the allegations were sufficient to show the corporation to be defunct, the statute relating to dissolution of such corporations, § 617.-05, Fla.Stat., F.S.A., as it stood on July 2, 1959, when the petition was filed, made provision for dissolution only through the action of the corporation. A 1959 amendment to that section of the statute and other sections relating to corporations not for profit (Chapter 59-427, Laws of Fla., 1959) conferring jurisdiction on courts of equity to dissolve defunct corporations at the suit of “any person”, which might have been availed of in such instance, was not made effective until September 1, 1959.
In the absence of statute permitting dissolution of the allegedly defunct corporation at the suit of a member, and absent any allegations of fraud or collusion, or of *230facts sufficiently charging that the corporation has been guilty of acts for which its charter should be terminated, the learned chancellor was not in error in granting the motion to dismiss.2
Under the circumstances it would appear that the final decree or order dismissing the cause, when it is made, should be without prejudice.
Affirmed.
HORTON, C. J., and PEARSON, J., concur.
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