51 So. 824 | Ala. | 1910
— By original bill, exhibited by Beese and others, as stockholders in the Minona. Portland Cement Company, against that incorporation, Parish, Armstrong, Kenan, and others, the dissolution of the incorporation was sought, and in connection with its dissolution and the disposition of its assets among those entitled thereto it was further sought that the “common stock,” as distinguished from the “preferred stock,” issued by the corporation, 'be canceled, on the averred ground that its issue was fraudulent, in consequence of a. ficticious and excessive valuation of lands conveyed to the company. The court, after amendment to the bill, sustained it, both against tire objection of want of equity and against numerously grounded demurrer. From this decree an appeal was taken, in April, 1909, to this court, where that cause now pends.
The court below, in dealing with this petition, accepted Coxe v. Huntsville Gaslight Co., 129 Ala. 496, 29 South. 867, as authority for the conclusion reached and action taken. In so doing no error was committed. It is not necessary to rehearse the ruling in Coxe v. Huntsville Gaslight Co., nor will it be proper, in this collateral proceeding, and with the main cause pending here, to enter upon a discussion of the facts of the original cause out of which the right of the injunction pendente lite arises. After full consideration of the averments of the pleadings in the original cause, and, with them, the matters set forth in the petition in this proceeding, it will suffice to now announce that the status shown clearly justified the action taken below.
It is urged for appellants that the city court has not yet assumed jurisdiction of the assets and properties of the Minona Company. "If by this insistence it is meant that the city court has not placed the assets and properties of that company in custodia legis, it .must be conceded. No receivership has been constituted. But, so conceding, it cannot follow that jurisdiction, for the purposes of the present bill, assumed by the city court, was or is so inconsequential as to avoid the conclusion that, if the proposed merger was effected pendente lite, no embarrassment or. hindrance would attend the enforcement of a decree declaring the rights of the parties complainant as they are set forth in the original bill. Jurisdiction of the incorporation and of the stockholders and directors thereof Avas taken and still exists. If the cancellation of the common stock, questioned by the bill, was decreed, it is too evident for doubt that such a decree could be as effectually enforced as it could have been if the' entire properties of the incorporation
It is further urged that interim interference is, in this instance, not expedient, and that the result of the restraint imposed is to seriously, if not irreparably inconvenience those in interest adverse to complainants. A like insistence is, in effect, expressed by the complainants in their petition. The choice between the two factions or interests is, therefore, hard in asserted effect. However, the fact — and that is apparent — that, if unrestrained, such action, affecting the merger, will in all probability be taken so as to practically render vain any decree that may be entered in accordance with the cancellation phase of the bill, to say nothing of the transfer of the Minona Company’s properties to a company not a party to the cause; and this, pending the determination of a “fair question” by a court that has assumed jurisdiction, at least a,t present, adequate to afford the relief sought, if finally found to be so entitled, must cast the conclusion in favor of the action taken below. When properly invoked, the dignity of the courts of equity demands that jurisdiction assumed shall be pro
For like reason we do not think a modification, as urged, of the order here appealed from, should be made. If the injunction pendente lite was properly issued, it should he given recourse and effect. To modify it would he equivalent, in this case, to pronounce against its propriety of issue. If the “common stock,” assailed as invalid, is so finally found, it may he that the hona fide stockholders will decide against the present proposal to merge the corporations. Who are rightfully entitled to express a choice on the proposed merger will, obviously, affect the decision in the premises. The Minona Company is. and, it seems, has been all the time, entirely inactive for the purposes of its creation. Want of requisite capital appears to have convinced all parties that it cannot, alone, succeed.
Neither the case of Mobile & Western Railway v. Fowl River Lumber Co., 152 Ala. 320, 44 South. 471. nor previous decisions therein cited, can be accorded influence here, as inducing a modification of the injunction pendente lite. The facts appearing in them, and those herein presented, together with the consequences of embarrassment and hindrance to the court that would attend the effectuation of merger pendente lite, readily distinguish those cases from that a.t ban. Interim interference finds no obstacle in the solvency vel non of those determined to effect the merger, or of the company which, it is intended, shall swallow up the Minona Company. Damages, in this instance, could not atone for an ousted or avoided jurisdiction; nor could even a certainty of recompense in recovery of damages, or equivalent recourse, if the rights asserted in the original hill come to be finally hound and enforced, qualif3r
An affirmance is entered.
Affirmed.