150 Ind. 427 | Ind. | 1897
Lead Opinion
The appellant sued the appellees to enjoin them from interfering with the plaintiff’s business, or collecting any of its moneys. The appellees answered, leading to issues of fact, a trial of which resulted in a general finding by the court for the defendants, upon which the court rendered judgment that the plaintiff take nothing by its complaint. The court overruled appellant’s motion for a new trial, having previously overruled the plaintiff’s demurrer for want of sufficient facts to the second and third paragraphs of the defendant’s answer. These rulings are assigned for error. The plaintiff alleges that it is a corporation, duly organized under the laws of the State of Indiana, resident in the county of Hamilton, having a regularly chosen and elected board of directors, of which John A. Thomas is president, and Addison Newlin is secretary and treasurer, and is engaged in the business, in its corporate name of The Carmel Natural Gas and Improvement Company, of drilling wells for and supplying gas to the citizens of
Rehearing
On Petition for Rehearing.
We are wholly unable to see any force in the criticisms of the original opinion by the learned counsel for appellants on the ground of our refusal to go on and decide the questions arising after the complaint. We refused to consider the error assigned on the action of the trial court in overruling the demurrer to answers and in overruling the motion for a new trial, because we concluded that the complaint did not state a cause of action, holding that such demurrer ought to have been carried back and sustained to the complaint, and for that reason, regardless of the alleged intermediate errors mentioned, we affirmed the judgment in favor of the defendants. We did so because the law compelled us to do so, though if we
In Ice v. Ball, 102 Ind., at pp. 46-47, this court said: "We are of opinion that the demurrer to the third paragraph of the answer ought to have been carried back by the court and sustained to the appellant’s complaint, for we are sure that this complaint did not state a cause of action against the appellees, or either of them. * * * This conclusion renders it unnecessary for us to consider any of the other errors of which complaint is made by the appellant. Where, as here, the plaintiff appeals, and it is shown by the record that he has no cause of action against the defendants, intervening errors, if any, must be regarded as harmless, and the judgment must be affirmed. Fell v. Muller, 78 Ind. 507; Rawson v. Pratt, 91 Ind. 9; Clawson v. Chicago, etc., R. W. Co. supra [95 Ind. 152].”
■ The language of these decisions of this court is imperative, commanding that the judgment in favor of the defendant must be affirmed, if the complaint was not good, no matter how much error was committed in holding the answers good, and in overruling the motion for a new trial. Of course, the learned counsel did not cite, refer to, or mention these decisions in their brief for a rehearing.
Our Appellate Court, with which at least some of
That labor, learning, and valuable time, “were,.applied to the consideration of the questions presented and argued by counsel” on both sides -without securing a decision thereof, is not the fault of this court, since those questions were wholly immaterial, and the rulings as to the answers and evidence, even if erroneous, were therefore harmless. The law cannot be changed by attempting to load the blame for the shortcomings of counsel on the court. But it is a terror to the upright judge even to be charged with deciding wrong. Such a charge induces him to demonstrate whether the charge is just. We do not complain that counsel thus compel us to demonstrate the correctness of our decision, but we have a right to expect counsel to apply the same rule to themselves, and they would thereby demonstrate that they were wrong, and thus save this court much useless labor on petitions for rehearing.
The rule laid down in 2 Ency. Pl. and Pr., p. 371, is stated thus: “Nor will the appellate court review or adjudicate questions unnecessary to the decision of the case. A decision on such points is mere obiter dicta, not binding on the trial court when the case is sent back for a new trial on reversal, nor upon the appellate court upon a second appeal of the same
Nor is there any force, and far less justice, in the criticisms of the opinion by said counsel, on the ground that we, “in determining the sufficiency of the com
The brief to which we have referred above, says: “The complaint is by the Carmel Natural Gas Company, the corporation itself, and is directed against Levi Small and a pretended Carmel Gas Company, of which Sylvanus Carey is president. * * * That plaintiff is a duly organized corporation, having a regularly chosen and elected board of directors, of whom John A. Thomas is president, and Addison Newlin is secretary and treasurer, and that it is engaged in
This is a tacit admission by appellant’s counsel that the complaint does not state a cause of action for an
We think, as we did before, that appellant’s counsel mistook their remedy, doubtless b^ oversight, in failing to file an information in the name of the State on the relation of the proper person. If the validity of the election of these officers cannot be inquired into under the complaint, as appellant’s counsel now tacitly admit, how can the right of Mr. Small to collect ’ money of the corporation be questioned by seeking to recover it from him? If he was not an officer of the corporation, and hence without authority to collect its money, payment to him by its debtors would be no payment, and no collection, unless the corporation saw fit to ratify his act as its authorized officer or agent. As a condition precedent to the right to recover the money he has collected in the name of the corporation as its officer, the corporation, appellant, must show first, as alleged in the complaint: “That said Small without being legally elected * * * is * * * collecting money due it, and has so collected a large sum of money, to wit, the sum of $1,000.00.” If the allegation here of the illegality of Small’s election, and the invalidity of his title to the office cannot be litigated in this form of action, then the complaint states no cause of action for a money judgment, even for the $1,000.00. The theory of the complaint as to that $1,000.00 is not that he has failed to pay the money over as an officer of the corporation who had rightfully collected it, but it is that he wrongfully collected it without being legally elected. The right to recover the money then is made to depend by the
This shows clearly enough that Carey, Small, and their associates were assuming and claiming to act as the corporation, and that Small in collecting the money was assuming and claiming to act as secretary, and presumably treasurer of the corporation in collecting the money, and that he was elected to such office by directors of the corporation who were elected by the stockholders thereof. And the only obstacle interposed by the complaint to his collection of the money is that he was not legally elected, admitting that he was elected, but denying the legality thereof, and basing the right to recover the money from him solely on the allegation that he was not legally elected. There is no dispute or controversy about the ownership of the money, both sides conceding that the ownership is in tte corporation; the only question, being who lawfully represents the corporation. As before remarked, the complaint shows that Garey, Small, and their associates are acting and claiming to act as the corporation. That involves not only the legality of their election, but whether they are a corporation.
So that it makes no difference whether we attempt to uphold the complaint,on the ground that it seeks an injunction, or the recovery of the $1,000.00. Be- . cause the right to the injunction is only reached by proving that the appellees were not legally elected to the corporate offices, the functions and duties of which they have been exercising. And so, too, if we attempt to uphold it solely on the ground that it seeks the recovery of a money judgment for the $1,000.00, the right so to recover can only be reached by proving that appellees were not legally elected to the corporate offices mentioned,.and hence had no right to exercise the duties and enjoy the franchises of the corporation.
So the right to question the legality of the election of those officers, or the right to question their power and authority to exercise corporate functions, as we have seen, cannot be done without filing an information in the name of the State. And that was not done in this case.
It is true the allegation of the complaint essential to the right of the plaintiff to recover the money judgment, namely, that the defendants were not legally elected, is a negative allegation. It is, however, well settled that where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such negative. City of New Albany v. Endres, 143 Ind. 203, 204, and cases there cited. Therefore, there was no cause of action stated by the complaint, either for injunction or for a money judgment. Petition overruled.