23 Md. 482 | Md. | 1865
delivered the opinion of this Court:
In this case, the judgment below was rendered against six defendants, and the appeal has been taken by five of them only; and the appellee has moved to dismiss the appeal, on account of the non-joinder of the other defendant. Since the decision of the case of Lovejoy vs. Irelan, 17 Md. Rep., 525, the law must be considered as settled, that where a judgment is rendered jointly against several persons, an appeal cannot be prosecuted by some of them, without the others, unless there be summons and severance.
This rule rests not only upon authority, but is founded in reason and justice; otherwise the consequence might be, that in a judgment against six persons, there might be six distinct and separate appeals, and, in the language of Tidd, (Practice, 2 vol., 1189, when speaking of writs of error,) “Wo- that means the plaintiff would be delayed from his ex-
This presents the question, from what Court the writ of summons and severance properly issues ? Neither the case of Lovejoy vs. Irelan, nor the case of Price vs. Thomas, 4 Md. Rep., 515, settles this question. In Price vs. Thomas, the objection was obviated by a correction of the record, and in Lovejoy vs. Irelan, no motion for the writ appears to have been made in the Appellate Court. The inference drawn by the appellee’s counsel from the language of the Court in those cases, “that the writ must be issued from tho Court where the judgment has been rendered, and that a severance is a necessary preliminary to the taking of the appeal,” we think is not warranted either by those decisions, or by the established practice in such cases.
After a careful examination of our books of Maryland practice, we have been unable to find any evidence of the practice in this State on this subject. Neither in Harris’ Entries, our old and justly respected book of forms, nor in the modern compilation of the same book, by Mr. Evans, or in his work on Practice, do wo find any reference to the writ of summons and severance. In the English practice, the writ is well known, and will be found treated of as well in standard elementary works as in the reported cases cited by the authors of books of practice. See 1 Archbold Pr., 233, 2 Tidd, 1189, 1225. 2 Sannd. Rep., 101, sec. 101 g, notes.
It appears, from these authorities, that the practice in
Motion to dismiss overruled, and writ of summons and severance ordered.
The appeal in this case was argued before Bowies C. J., and Bartol, Gtoldsborough, Oochrait and Weisel, J.
delivered the opinion of this Court:
When this ease was argued some reasons were suggested, why an immediate decision was necessary; the proceedings were considered, and this Court being of opinion that there was no error in the ruling of the Superior Court, upon the questions presented by the record, directed that the order appealed from should be affirmed. We now proceed to state, briefly the grounds of our decision :
By the second section of the Act of 1852, ch. 221, under which the Loudon Park Cemetery was incorporated, it is provided, that the Company may, at such time and place as its By-Laws may specify, elect annually, a Board of Managers, &c. The charter declares that the Board shall consist of six persons.
On the 3rd Tuesday of May 1864, the time fixed for the annual election by the By-Law, then in force, the appellants were elected Managers, to hold their office for one year, and until their successors should be elected and qualified.
On the 14th day of January 1865, at a meeting of the Board, at which were present four of their number, being a quorum, it was resolved, that thereafter, the annual election of Managers; should be held on^ the 2nd Tuesday in November of each year. The effect of that resolution, was to extend the term of office of the Board, six months beyond the time for which they had been elected; and the main question in the case is, whether the passage of that resolution was a valid exercise of authority on the part of the Board of Managers.
It is contended, that their power to pass the “resolution, is to be found in the authority given to them to specify in a By-Law, the time for the annual election. It is plain that the object of this provision is to enable the Board to carry out the intent of the Act, by securing an annual election, and not to authorize them to defeat that intent, by preventing such election. The power to fix the time for the annual election, cannot be construed into a power in
In our opinion the passage of the resolution of the 14th of January was not warranted by the terms of the charter, and not justified by the grounds and reasons set forth in the appellants’ answer.”
It is alleged in the answer, ‘ that frauds upon the Company had been committed by members of former Boards, which were the subject of suits in equity, pending in the Circuit Court for Baltimore county; and the answer charges substantially, that it is the object of the petitioner, in collusion with the parties by whom those frauds had been perpetuated, to get control of the Company, in order to dismiss those suits, and thus prevent an investigation of their fraudulent acts; and the answer alleges that the respondents deemed that the interest of the Company required that such fraudulent scheme should be defeated; and that the election should be postponed, that the cases may be tried, and for such purpose only, and not for the benefit of the respondents, the change was made.”
The inference from this answer is, that the petitioner, and those who are alleged to act with him, own a majority of the stock, and consequently, a change of management would be effected at the next election, by those entitled to make such change; but, in order to defeat such change, the Board of Managers altered the day of election from May till November, thereby extending their own term of office; for the alleged purpose of protecting the interests of the stockholders from their own apprehended mismanagement. But the Board of Managers are merely agents, and the right of determining who shall constitute the Board, belongs not to them, but to the stockholders, who are their principals.
The argument of the appellee on this point is conclusive.
Some technical objections to the granting of the writ have been presented by the appellants, which it is necessary to notice :
1st. It is contended, that the real and personal estate of the Company being situated in Baltimore county, the Superior Court of Baltimore city had no jurisdiction in this case. Though the Cemetery is situated in the county, by the charter it is declared, that ‘ the Company shall be located, and its principal business transacted, in Baltimore city.” The charter was acknowledged and recorded in the city, and we have no doubt of the jurisdiction of the Superior Court over the case.
2nd. It is objected that no previous- demand was made upon the respondents to appoint a judge and tellers, for the purpose of holding an election in May, and there having been no refusal by them so to do upon demand, the writ ought to be denied.
Whatever may be the rule in the English Courts, the law and practice in Maryland, in such cases, do not require a previous demand and refusal, in order to support an application for a mandamus, at least, not in a case like the present. See, Runkel vs. Winemiller, 4 H. & McH., 431. Ellicoit vs. Levy Court, 1 H. & J., 359. Brosius vs. Reuter, Id., 480. Smith vs. Erb, 4 Gill, 442. See, also, 37 Pa. Rep., 246.
The writ not being ex débito, but in all cases resting in the sound discretion of the Court, there may be some cases in which the Court, in the exercise of its discretion, would
3rd. The objection founded upon the terms of the 8th By-Law, which required ten days’ public notice to precede an election, is one which the appellants cannot he allowed to urge in this case. Inasmuch as the necessity for a resort to the Court was caused hy their own act; and the impossibility of a literal compliance with that By-Law, was also a consequence of the same wrongful act of the respondents.
The purpose of the application, was to obtain a peremptory writ, requiring the election to be held on the 3rd Tuesday in May 1865, so that the appellants had notice in fact, from the time the petition was filed.
We concur in the opinion expressed by the Judge of the Superior Court, that this is not a case in which, under the Code, an appeal bond is authorized to be given.
Order affirmed.
( Motion to dismiss decided, and summons and severence ordered October 9th, 1865. See p. 494; and appeal decided November 2nd, 1865.)