53 Wash. 416 | Wash. | 1909
This action was commenced by Seattle & Northern Railway Company, a corporation, against Union Wharf Company, a corporation, to recover $3,188.46 on an open account. Upon plaintiff’s motion and notice, a receiver
To this complaint in intervention the plaintiff interposed a general demurrer, which was heard on March 20, 1905, then taken under advisement, and sustained on April 17, 1905, as shown by a mmc pro tunc order entered on May 18, 1906. On May 12, 1906, the interveners asked permission to amend their complaint in intervention by adding thereto a
Appellants contend (1) that their complaint in intervention was filed in time; (2) that in any event.it should be considered as a motion or application to vacate the judgment; and (3) that it states facts sufficient to entitle them to the relief demanded.
The statute, Bal. Code, § 4846 (P. C. § 272), provides that: “Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter of litigation, in the success of either party, or an interest against both. . . .” Appellants’ complaint in intervention was not filed until after the entry of the judgment, which is regular upon its face, and affirmatively recites due and personal service upon the defendant. A complaint in intervention is filed too late if filed after judgment. It must be filed before trial, which necessarily precedes the entry of judgment. Wiseman v. Eastman, 21 Wash. 163, 57 Pac. 398; Hight v. Batley, 32 Wash. 165, 72 Pac. 1034, 98 Am. St. 851; Meadows v. Goff, 90 Ky. 540, 14 S. W. 535.
Appellants nevertheless contend that the complaint in intervention was filed in time, because they allege that the pern son upon whom service was made was not the legally elected vice president of the defendant, that the judgment entered upon such service was void, and that no trial has yet occurred in the court below. The allegations mentioned are not sufficient to negative the showing of the record that Mr. Piles, upon whom service Avas made, who assumed to act as vice president in admitting service, and was presumably in possession of the office, was at least a de facto officer. No al
Appellants, however, contend that the complaint in intervention should be considered as such a motion or application to vacate the judgment and as a direct attack thereon. The record indicates that throughout all the proceedings the appellants themselves regarded their pleading only as a complaint in intervention. Its allegations, and the manner in which it was presented, negative the idea that it was otherwise regarded by themselves, the respondent, or the trial court, or that it was intended as a direct attack upon the judgment under the statute above mentioned. Appellants’ proposed amendment, which was denied, was not of such a character as to invoke the court’s consideration of the pleading on the theory that it was a motion or petition under Bal. Code, §5155 or §5157 (P. C. §§ 1085, 1087), but the amendment was requested with the manifest intention of perfecting the pleading as a complaint in intervention. Their present contention that the pleading was a direct attack upon the judgment, under the statute, seems to have been made for the first time in this court, to give it a standing to which it is not entitled as a complaint in intervention. Their cause must be considered here, upon the same theory on which it was presented to and considered by the trial court. Normile v. Thompson, 87 Wash. 465, 79 Pac. 1095; Sanders v. Stim
In any event, appellants’ pleading does not state facts sufficient to give them any standing in court or to entitle them to relief. They are minority stockholders, attempting as such to litigate issues arising between the respondent and the defendant corporation. Their pleading contains no allegation that they have exhausted such remedies as may have been open to them within the corporation itself, or available by an application to its officers or trustees, nor do they allege facts sufficient to excuse the necessity of such action. Stockholders as such are not entitled to the relief demanded by appellants. The management of corporate affairs is properly vested in a board of directors, and it is against the policy of the law to permit stockholders as such to usurp their functions. When stockholders believe the corporation is about to incur loss or be injured in threatened or pending litigation, they should first consult with the directors, seek protection through them, and if possible, reach ah understanding as to the merits and conduct of the litigation. They should not be permitted to resort to the courts in their capacity as stockholders unless the remedies thus sought are denied them by the officers and directors of the corporation itself.
The respondent’s demurrer was properly sustained, and the judgment is affirmed.
Rudkin, C. J., Mount, Parked, Gose, Dunbar, Morris, and Fullerton, JJ., concur.