134 P. 782 | Or. | 1913
delivered the opinion of the court.
1, 2. The question to be considered is whether or not, based upon the facts involved herein, mandamus is the proper remedy. Though the stock in question is deemed to be personal property, such incorporeal acquisition is not alleged to have any particular value on account of the pretium affectionis which might possibly attach to a favorite chattel, and for the refusal of the defendant to make the transfer an action at law might have been maintained to recover the value of the stock, unless the insolvency of the corporation would render that remedy ineffectual. The statute regulating the practice by mandamus declares: “The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the
If the defendant was insolvent as alleged, an action at law to recover the value of the stock would probably not have furnished an adequate remedy. A legal remedy that will bar relief by mandamus is a remedy at law as distinguished from a remedy in equity: High, Ex. Legal Rem. (3 ed.), § 20; Slemmons v. Thompson, 23 Or. 215 (31 Pac. 514); State v. Sneed, 105 Tenn. 711 (58 S. W. 1070). In Slemmons v. Thompson, supra, it was ruled that, in case a corporation was apparently insolvent, mandamus would lie to compel a transfer of stock to a purchaser whose title was derived from an execution sale. The decision in that case is based on a statute declaring that all stocks in private corporations are deemed personal property and subject to levy and sale upon execution and requiring the corporation, where such sale has been made, to make the necessary transfer to the purchaser upon the stock book: Section 6695, L. O. L. That determination is also predicated on the theory that, the corporation being apparently insolvent, the remedy at law to recover the value of the stock would probably have proved unavailing, and hence a resort to mandamus was necessary in order to
In the case at bar the sale of the stock to plaintiff was evidently made voluntarily and not in invitum on execution. In discussing the remedies of mandamus and a suit in equity to compel a transfer of the stock of a private corporation, it is observed: “There is very little authority on the subject, and that conflicting, but it is believed that the writ of mandamus will be confined to cases, if any there be, where neither an action at law nor a bill in equity .furnishes sufficient relief, inasmuch as mandamus is an extraordinary remedy and affords no means whereby conflicting claims to stock can be adjusted and all the parties brought before the court”: Lowell, Transfer of Stock, § 234.
3. A stockholder in a private corporation may by a writ of mandamus obtain an inspection of the corporate books, if such privilege is denied him. In order to be entitled to such relief, he must show that he requests such examination for some just purpose or to prevent some injury which he might sustain if not permitted to inspect them: Merrill, Mandamus, § 161. The return herein does not make any averment as to the necessity for an examination of the books, and hence mandamus will not issue on that ground.
Though an action at law herein might have proved fruitless in consequence of the alleged insolvency of the defendant, and though, so far as disclosed by the return of the alternative writ, there are no conflicting
It follows from these considerations that the judgment is reversed and the proceedings dismissed.
Reversed : Proceedings Dismissed.
