51 Kan. 617 | Kan. | 1893
The opinion of the court was delivered by
This action was brought in 1885, by the board of county commissioners of the county of Sumner against the Atchison, Topeka & Santa Fé Railroad Company, the Cowley, Sumner & Fort Smith Railroad Company, and the Wichita & Southwestern Railway Company; and the petition first filed was afterward amended by adding allegations of fact, and the naming of additional defendants. In September, 1887, a third amended petition was filed, in which the Harvey County Railroad Company, the Wichita & Southwestern Railroad Company, and the board of county commissioners of Cowley county were named as defendants. Motions were made to require the plaintiff to separately state and number the causes of action contained in the petition, and to make more definite and certain the allegations embraced therein. These motions were overruled, after which a demurrer to the petition was filed by two of the defendants, alleging, among other grounds, a defect of parties defendant, the improper joinder of several causes of action, and that sufficient facts were not stated to constitute a cause of action against either of the defendants. The demurrer was overruled, and these rulings are assigned as error.
In the amended petition, it is substantially alleged that the Atchison, Topeka & Santa Fé Railroad Company, (which for
It is then alleged that the officers, directors and attorneys of the Atchison company heretofore named, together with those with whom they were associated, appointed themselves as the officers and directors of the Fort Smith company, and have since continued in the control of the latter company, and that in August, 1879, the Fort Smith company, at the instance of the Atchison company, mortgaged the railroad built and to be built under the charter of the Fort Smith company in the sum of $798,000 to two persons who were officers and stockholders in the Atchison company, who thereafter received from the sale of the bonds their face value, which was in amount equal to $8,000 for each mile of the road built. It is then alleged that the Fort Smith company sold the municipal bonds received from the counties of Sumner and Cowley, and received therefor the sum of $300,600, which, with the amount received from the sale of the mortgage bonds, was wrongfully turned over and placed in the treasury of the
It is next alleged that the officers and directors of the Fort Smith company executed and delivered to the Atchison company 11,994 shares of its capital stock without any real consideration having been paid therefor, and that the Atchison company has never paid nor given anything of value for the stock so transferred to it. The transfer is alleged to have been made in order to enable the Atchison company to manage and control for its own benefit the business and affairs of the Fort Smith company. It is further alleged, that the bonds and stocks so paid over and transferred to the Atchison company were transferred under a pretended contract, made with the treasurer of the Atchison company, whereby the Atchison company subscribed for the capital stock of the Fort Smith company, upon the agreement to build and construct the road of the Fort Smith company, in consideration of receiving the aforementioned mortgage bonds, municipal bonds, and capital stock. It is alleged that the contract is void for the reason that it was unjust, was made by persons who were stockholders and officers of each of the contracting parties, was entered into in order that the Atchison company might absorb the receipts and earnings of the Fort Smith company, to the exclusion of the bona fide stockholders of Sumner and Cowley counties. It is next alleged that, on September 6, 1882, the Fort Smith company, the Atchison company, the Wichita & Southwestern Railroad Company, and the Harvey County Railroad Company, without the consent of the county of Sumner, entered into an agreement of consolidation, under the name of the Wichita & Southwestern Railway Company, which agreement was approved and ratified by two-thirds of the capital stock of the companies; but it is averred that the consolidation was unlawful and invalid because the officers, directors and stockholders of the Atchi
It is next alleged that, on October 20,1885, the Wichita & Southwestern Railway Company leased the railroad, lands, buildings and other property of the consolidated company to the Atchison company, from 1883 to 1979. It is stated that the lease was made at the instance and for the benefit of the Atchison company, and that the officers of one company held similar positions in the other; and for that reason, as well as others, it is alleged that the lease was invalid; and further, that the county of Sumner had never ratified or consented to the lease, and had no notice of the making of the same until about the time of the commencement of this action. It is further averred, that in October, 1885, the Atchison company, without the consent of the county of Sumner, obtained possession of the certificates or shares of the capital stock owned by the county in the Fort Smith company, and after the Atchison company had been notified that the county of Sumner would not ratify the consolidation, and would not surrender its stock, but that it neglects and refuses to surrender and turn over to the county the certificates so wrongfully obtained and held. It is then averred that the counties of Sumner and Cowley are the only stockholders in the Fort Smith company which are bona fide, and have paid in full for the stock issued by that company; and further, that the Fort Smith company, the consolidated company, and the Atchison company, which has received the receipts and earnings of the Fort Smith company, which are large, and greatly in excess of the outlays and necessary expenses, have neglected and refused to declare any dividends upon the capital stock owned by the county of Sumner, and that there are in the hands of the Atchison company large sums of money which it is using for its own benefit, to the exclusion of the county of Sumner as a stockholder, and that the latter company refuses to make any accounting whatever with the county as a stockholder.
It is next alleged that the county of Sumner, being a bona
The prayer of the petition is, that the Atchison company be compelled to account for all moneys received by it as earnings, profits or otherwise from the Fort Smith company since the organization of that company; and next, that the Atchison company and Fort Smith company be compelled to account for all moneys received from the sale of the mortgage bonds issued by the Fort Smith company; and further, that it account for all the capital stock of the Fort Smith company actually sold, and for full consideration therefor at the time of the sale thereof; and further, that the Atchison company be compelled to deliver into court for cancellation all the certificates or shares of the capital stock of the Fort Smith company issued to it without consideration paid therefor; and further, that a judgment be rendered against the Wichita & Southwestern Railroad Company, the Harvey County Railroad Company, and the Wichita & Southwestern Railway Company, decreeing and declaring the articles of consolidation to be null and void so far as the road constructed under the Fort Smith company is concerned; and further, that judg
Several other questions are suggested in the briefs of counsel, but they cannot be properly or satisfactorily determined until the petition and pleadings have been reformed and cor