16 Del. Ch. 105 | New York Court of Chancery | 1928
There are two matters before the court. The first is the preliminary one of whether the motions should be granted which were presented by Gill’s solicitor to the effect
First, then, should either of the motions made by Gill’s solicitor be granted? It should be noted at the outset that the intervention issue is one which Gill has himself precipitated by seeking to become a party defendant. On his own application, he was admitted such party for the purpose of filing in the pause any motion or other pleading on or before September 15, 1927. The record fails to disclose the filing of any motion or pleading by Gill within the time fixed by the order admitting him as a party, or at any other time. The solicitor for Gill stated that he made to the court a motion on November 2, 1927, but that because the defendant corporation presented on that day a new answer, the Chancellor suggested that Gill should in the light of the new answer file a new motion. This I think is correct. No new motion, however, was ever filed in Gill’s behalf. In order to bring the matter to a head, the solicitor for the complainant then filed his answer to Gill’s intervention petition attacking Gill’s right to be a party on the ground of his lack of status as a stockholder and praying that he be accordingly dismissed as an intervenor.
The matter thus raised of Gill’s right to intervene was set down on December 9, 1927, for hearing a month and sixteen days thereafter, viz., on January 25, 1928. Prompt notice of the order setting the hearing for that day was given to Gill’s solicitor. This was all that was necessary under the rules in order to bind Gill. But Gill was further notified of the order by mail, such notice reaching him in Scotland not later than December 19th, thirty-six days in advance of the hearing date.
When that date arrived (January 25th), Gill was not present. No word had been received from him. The complainant was
Based on the foregoing cables, the solicitor for Gill moved, upon the closing of the complainant’s testimony on February 3rd, for a continuance. Discussion of the motion was put over until February 8th, at which time the solicitor for Gill, possessing no more information than before, moved that no time be set for Gill’s attendance to present testimony until the arrival of the medical certificates referred to in the cablegrams. The solicitors for the complainant resisted this application stating that they were in receipt of cable and telephone information from Scotland to the effect that Gill was up and about and travelling around in apparently good health. My conclusion from all that appeared before me was that Gill was not seriously sick. It seemed to me also that he had not been at all diligent in attending to the litigation which his own act of intervening had thrust upon the court. Witnesses had been drawn here from a distance — from so far away as Scotland to meet the issue which Gill’s intervention had precipitated. It was manifest that if the case was left open for Gill to appear at his convenience, the complainant would have to undergo the expense of bringing these witnesses back again to meet the possibilities of Gill’s testimony. If Gill was sick, it was impossible, from what appeared, to say when he became so. It may have been that his alleged sickness developed in time, if properly communicated, to enable the, complainant to head off her witnesses, and also to afford the complainant an oppor
Under these circumstances, I felt that no indulgence should be shown Gill who initiated the intervention controversy unless indeed what appeared to be light-hearted indifference to the court whose jurisdiction was invoked and a spirit of aloofness to its procedure, should be accepted as a good ground for such indulgence — a view which no one would of course maintain.
The main cause is one in which a receivership was sought for a corporation whose affairs, it was claimed, were being most flagrantly mishandled. Gill is charged to be the one against whose alleged misdeeds the receivership is sought as the only possible corrective remedy. Ordinary experience in such matters is enough to convince any one that where internal disputes exist within a corporation, one of the parties may find it highly to his advantage by procrastination to delay the progress of litigation which, if he be in the wrong, will eventually give or contribute to relief against him. Without going into details concerning the claims of the respective solicitors as to the necessity of determin
Since then, the medical certificates referred to in the cables to Gill’s solicitor have árrived and supply the basis of the renewed alternative motions for additional time or for a commission, made by Gill’s solicitor on March 2, 1928. A reading of these certificates instead of shaking the impression I entertained when the hearing was ordered closed has rather confirmed me in that impression. The dates of these certificates are significant. The first one is dated January 8, 1928, and the second January 16, 1928. It is therefore apparent that Gill realized as early as January 8th that he was required to be present here for the scheduled hearing. The obtaining of the certificate on that day cannot be explained on any other theory. Furthermore, he continued under the same realization until January 16th. Nothing has been shown which in any wise removes from the situation the continued knowledge on Gill’s part that he was under a duty to attend to his litigation in this court as ordered. Now if he knew as early as the eighth that he could not travel, why did he not communicate the fact to his adversary? To have done so would have afforded the other side an opportunity to confirm his alleged claim of illness, and would also have allowed the giving of timely notice by the complainant to head off her witnesses from a great distance, thereby saving expense to her and great inconvenience to them. The fact that he did not promptly communicate information of his claimed illness serves very rightly, it seems to me, to raise a doubt touching the bona fides of his present claim.
The substance of the certificates is not very satisfying. The first states that he was suffering from the results of a very severe attack of influenza and was not therefore fit to journey to America. The second one, given eight days later, states that it would be a matter of grave risk to Gill’s health were he to undertake a sea voyage at present. But in the second certificate he is said to be suffering from excessive weight which affects for the time being
Now against these certificates the complainant has produced fourteen affidavits made by persons who swear that Gill was out and about on January 24th, 25th, 27th, 29th, 30th and on February 1st and 5th. He was attending a funeral, driving a motor, attending church, stepping off a train and all the affiants state that he appeared to be in the best of health.
The showing thus made by the medical certificates and the affidavits tends to confirm me in the-view entertained on February 3rd that Gill should be granted no further continuance of the hearing on the intervention and the motion of March 2d requesting such continuance will be denied. As to the motion that I direct a commission to England to take testimony upon Gill’s condition prior to January 25th, this will be denied. It is incumbent on Gill to sustain the burden of showing to the court that his absence is justified and not upon the court to initiate a plan involving long delay by which the court can ascertain if such burden was capable of being sustained by Gill himself.
In the foregoing I have given to the question of a continuance a somewhat detailed discussion largely because of the realization that a determination of Gill’s right to intervene, if predicated on his status or lack of status of stockholder, might be of serious consequences to him. So much did this aspect of the matter concern me, that if a way could be found to advance the main receivership cause to a conclusion without passing on Gill’s status of a stockholder, I would have welcomed such a course. Accordingly, before the medical certificates and counter affidavits arrived, I suggested to Gill’s solicitor that Gill might possibly avoid a decision upon his status of stockholder as determinative of the intervention issue, by moving to withdraw his request to intervene. This suggestion, however, was not accepted.
I am compelled, therefore, to proceed to pass upon Gill’s right to be an intervenor on the evidence produced by the complainant, which is all the evidence in the case.
Second, then, does Gill possess the. status of stockholder
An order dismissing Gill as an intervener will therefore be entered.
The solicitor for Gill has requested that if such an order is entered, it be without prejudice to Gill’s right to assert his claim to be a stockholder in other litigation. How such a reservation of right could in .consonance with an order based on the absence of the right be saved to Gill, I am at a loss to see. If however, the solicitor for Gill can produce satisfying authority in support of his request, it will be granted.