7 Minn. 252 | Minn. | 1862
Lead Opinion
By the Oourt
The Plaintiffs are stockholders of the Bank of Saint Paul. The Defendant, T. Romeyn B. Eldridge, is the President of the Bank. The Defendant, John H. Eldridge, is the Cashier of the Bank, and the Defendant, Iglehart, is the assignee of the effects of the Bank. The complaint alleges the incorporation of the Bank with T. Romeyn B. Eldridge as President, and one Burnell as Cashier, who was afterwards succeeded by John H. Eldridge. That all the capital stock was paid in except such as was owned by the President and Cashier, as to which the Plaintiff pleads ignorance; that the capital stock has been squandered, converted or secreted by the President with intent to cheat and defraud the shareholders and creditors of the Bank ; that the assignment was made without the knowledge of the shareholders, and as part of the scheme to defraud, &c. The incompetency of the assignee is then alleged, and the misconduct of both assignee and assignor, T. Romeyn B. Eld-ridge, in regard to the management of the assigned estate.
The relief sought is, that the two Eldridges and Iglehart account; that the latter be removed as assignee, and some •one else be appointed trustee or receiver; that the assignment be adjudged void; that the Bank of St. Paul may be dissolved, and for an injunction and receiver during the pendency of the action, &c.
The Bank, the President and the Cashier each separately demur, and allege as grounds, that there is a defect of parties defendant, a misjoinder of actions, and that the complaint does not state facts sufficient to constitute a cause of action.
These Plaintiff's represent a portion of the capital -of this Bank, and sue on behalf of all the other stockholders who by contributing to the expense of the action may desire to avail
The Defendants insist that these several items of relief are all separate and distinct causes of action, and cannot be reached in one suit. In this we think they are mistaken. The cause of action that the Plaintiffs have against the Defendants, consists in their having entrusted their money to T. Bomeyn B. Eldridge under the name of the Bank of Saint Paul, and the same individual as the President of that Bank,
In Lewis & Pickering vs. Williams & Son, 3 Minn. 12., 151, we held that a mere excess of parties Defendant, was no cause of demurrer for any of the parties properly sued, nor was it cause of demurrer on the part of the party improperly joined on the ground of a defect of parties, but because the complaint does not state a cause of action against him. This rule was again held in Nichols vs. Randall, 5 Minn. R., 304. So far then as The Bank of St. Paul and T. Romeyn B. Eldridge are concerned, we have shown that a cause of action, and but one cause of action exists against them. They, therefore, cannot demur on account of the misjoinder of John H. El-dridge, even if no cause should appear for connecting him with the suit.
In regard to John H. Eldridge, he may be a proper party to the action, without the decree necessarily granting to the Plaintiff as against him, all he asks against the others. In Seager vs. Burns et al., 4 Minn. R., 141, an action was commenced to obtain a specific performance of a parol contract to convey land, and a certain judgment creditor was made a party Defendant, the only purpose of which was to foreclose his lien, and postpone it to the right of the Plaintiff. He demurred, alleging that no cause of action appeared against him. We overruled his demurrer on the very obvious ground, that notwithstanding the complaint charged nothing against him, and asked nothing of him, he was a necessary party to
All the demurrers were properly overruled, and the order is affirmed.
Dissenting Opinion
Dissenting.— I agree with my associates that the demurrers to this complaint were properly overruled, with the exception of that of John H. Eldridge. In no view of the case does the complaint state any facts showing a cause of action against him, and I am at a loss to. discover upon what principle he is to be held under this complaint, as a proper party Defendant. The complaint alleges that “ T. Eomeyn B. Eldridge became and was a body politic and corporate by the name of The Bank of St. Paul, and still remains and is such corporation.” The complaint further alleges, that the said T. Eomeyn B. Eldridge has squandered the whole capital stock of the said Bank which was paid in, or converted by him to his own use, or that the same is now fraudulently concealed and secreted by him, with a view to cheat and defraud the shareholders, &c., that the business of the said bank has been from the time of its incorporation down to the time of the assignment, under the ent/vre charge and control of the said Eldridge, the President thereof; that the Plaintiffs have made diligent effort to obtain from the said Iglehart and Eldridge information of the debts, assets and affairs of the said bank, and to see the books and papers thereof, but that said parties refuse to give such information, &c., but that said Eldridge keeps said books and papers in a saw mill, remote from the business portion of the city of St. Paul, and utterly refuses access to the same, or to furnish any information in regard to the same, &c. There is no charge of bad faith, or misconduct of any kind as against John H. El-dridge, nor any ground whatever shown for making him a Defendant more than any other shareholder in the bank. It is true it is alleged that he was cashier, and that the assignment was executed by the president and cashier, but the complaint also shows that this position gave him no control over the management or funds of the bank, for it expressly avers that the former was under the entire charge and control