280 F. 934 | D. Del. | 1922
The Atlantic Refining Company filed its bill of complaint against Port Lobos Petroleum Corporation and Atlantic Lobos Oil Company (hereinafter called the Oil Company), asserting that, under a contract of October 5, 1916, and supplements thereto, the plaintiff is possessed of certain rights with respect to the transportation and delivery of fixed quantities of oil through the pipe lines of the defendants at a specified price, charging that the defendants threaten, unless restrained, to exclude from their pipe lines oil that plaintiff is entitled to have transported and delivered, and praying injunctive relief. The defendants appeared and filed an answer, .alleging that the contracts in question do not confer upon the plaintiff a right to the transportation and delivery of the full amount of .oil to which plaintiff asserts it is entitled. Thereupon Marcel Denis presented to the court his verified petition, praying that he be permitted to intervene as a defendant on behalf of himself and others similarly situated, that he be permitted to file an answer on behalf of the Oil Company, and that he have general relief. The allegations of the petition upon which its prayers are based are that the petitioner is a stockholder of the Oil Company, that in presenting the petition he acts on his own behalf and on behalf of a group of minority stockholders of the Oil Company, that the plaintiff and its officers are the owners of the majority of the shares of the capital stock of the Oil
“intends to present by answer facts calling for the entire abrogation of the contract of October 5, 1916, upon Ihe continued existence of which the claim of plaintiff to relief depends, and also intends to show facts which, granted the continued existence of said contract, requires a different construction from that giren it by the so-called agreement of December 27, 1920, coercively and improperly entered into as aforesaid, and the majority of votes for which were cast by directors who were directly interested in and some of whom were directors of the plaintiff.”
Reave to file the petition was granted and the petition filed. Thereafter, on motion of the petitioner, an order was entered setting the petition down for hearing on a specified day, and directing that the clerk of the court mail to the plaintiff and the defendants, or their solicitors of record, copies of the order and of the petition. An answer to the petition was filed by each of the parties to the cause. To the answers the petitioners sought to file an affidavit in the nature of a verified replication. This was objected to. That objection makes it necessary to ascertain the proper procedure upon a petition for intervention, and particularly what the record at the hearing to determine the right of a petitioner to be made a party to a cause may consist of.
“ * * * The petition for intervention is then filed, on which the court examines the petition and answer, and such testimony, by affidavit or otherwise, as may be produced, and determines the question as to whether the petitioner shall be allowed to intervene and become a party to the suit.”
This is the only case found authorizing the raising of an issue of fact at the hearing had upon the petitioner’s right to be made a party. In Henry v. Travelers’ Ins. Co., 16 Colo. 179, 26 Pac. 318, on the contrary, the court below had considered a petition of intervention in connection with the other pleadings in the áction, and had denied the petitioner’s right to intervene. Error was assigned. The Supreme Court said:
“The petition of intervention having been presented in due form and in apt time, the question for our consideration is: Does the petition set forth a state of facts in relation to the parties and the subject-matter of the litigation entitling Henry to be made a party to the action as an intervener? This question must be determined from a consideration of the matters set forth in the petition, taken in connection with the other pleadings and proceedings in the action. In determining this question, whether upon application to file the petition, or upon motion to strike out the petition, or upon demurrer to the petition for insufficiency, the averments of the petition, so far as the same are well pleaded, must be taken as true. Mere uncertainty or ambiguity in the averments of the petition should not be held sufficient to defeat the right of intervention without giving the usual opportunity to amend.”
The same court in Wood v. Denver City Waterworks Co., 20 Colo. 253, 38 Pac. 239, 46 Am. St. Rep. 288, in applying the foregoing case, said that it was there held that—
“In determining whether an application to intervene should be allowed, the averments of the petition, so far as the same are well pleaded, must be taken as true.”
I find no other cases upon this point. Equity rule 37 (198 Fed. xxvii, 115 C. C. A. xxvii) provides in part:
“Any one claiming an interest in the litigation may at any' time be permitted to assert his right by intervention. * * * ” (Italics ours.)
“The directors represent all the stockholders and are presumed to act horn estly and according to their best judgment for the interests of all.”
The application to be made a party defendant must therefore be denied, and the petition dismissed.