202 A.2d 248 | Conn. Super. Ct. | 1964
In this proceeding, the plaintiff seeks an order of this court that the defendant corporation be required to permit her as a stockholder to examine the corporation books and records of accounts, profit and loss statements, and balance sheets. The plaintiff did not institute the proceedings by a writ, summons and complaint in the usual form but has filed with the court what she has entitled an "Application for Order re Examination of Corporate Records, Profit and Loss Statements, and Balance Sheets." Upon this application, an order was issued to the defendant corporation to appear and show cause why the application should not be granted.
The defendant corporation appeared by counsel specially to contest jurisdiction and has filed a motion to erase on jurisdictional grounds that the writ and summons served in connection with the order to show cause was not accompanied by a complaint as required by §§
It is at once obvious that the plaintiff is attempting to proceed under § 33-334 (b) of the General Statutes, which expressly provides that the Superior Court or any judge thereof may, upon application by a shareholder, notice to the corporation and hearing, order the corporation to permit an examination of such records as the plaintiff seeks to examine. Such a right of examination for a proper *255
purpose existed at common law and has commonly been enforced through mandamus proceedings. SeeState ex rel. Costelo v. Middlesex Banking Co.,
The court joins in the various recent suggestions of the Hartford County Bar Association "Bar-fly" that members of the bar would do well to take a look at the Practice Book. See, e.g., 20 Bar-fly, No. 18 (Sept. 1962). There is no more justification for the procedure followed in the present instance than there would be for a "Dear Judge" letter to the court asking the court to enter an order. As Justice O'Sullivan observed in Malone v. Steinberg,
"The procedure in mandamus is definitely fixed by our decisions and should be followed." State exrel. McCarty v. Thim,
The present proceedings are obviously fatally defective. A "writ and complaint in an original action shall be in the form used in, and served as are, ordinary civil actions, but with a distinct statement in the prayer for relief that an order in the nature of a mandamus is sought." Practice Book, 1963, § 463. The same section provides that although no affidavit as to the truth of the allegations of the complaint is required, a recognizance such as that ordinarily used in civil actions is necessary. SeeBissing v. Turkington,
In the present proceedings there is no writ, no complaint, no recognizance. In fact, there is no "original action" pending, only an "application."