131 P.2d 513 | Nev. | 1942
Lead Opinion
ON THE MERITS *408
Respondents deny that relator is a stockholder in or a director or the secretary of the corporation, and deny that when demands for delivery and inspection were made relator was or at any time since has been a stockholder in or a director or the secretary of the respondent corporation, and deny that the bylaws provide that *410 the secretary of the corporation should at all times have charge and custody of its seal, books, records, papers, or documents.
Issues having been joined, it became apparent to this court that the taking of testimony was necessary in order to enable it to determine whether the writ should issue as prayed.
1. The mere assertion of ownership of stock and the mere assertion that relator was the secretary and a director of respondent corporation would not entitle the claimant to the writ; and the mere denial of ownership of stock or that relator was an officer as alleged is not sufficient to deny relator a writ; because if a mere denial were sufficient, such a writ could not be had in any case, and if a mere assertion of ownership of stock and of occupancy of an office were sufficient, the writ would be issued in every case. State v. Van Tassell Real Estate
Live Stock Co.,
First: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on August 22, 1941, a director of said Garaventa Land Livestock Company?
Second: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on August 22, 1941, secretary of said Garaventa Land Livestock Company?
Third: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on August 22, 1941, a stockholder of said corporation?
Fourth: In case said district court made findings for relator, what damages had been thereby sustained, specifying the particular items of damages? *411
In response to the order, the referee took testimony and made his report to this court, wherein he answered the first three questions in the affirmative and found that relator was entitled to the sum of $1,000 as attorney's fees.
2, 3. Subsequent to the filing of the referee's report, respondents filed certain objections to the report, the main contention being that the findings of the referee go beyond the scope permissible in a mandamus proceeding. At the outset it should be stated that if such be true, then the fault lies in the breadth of the order directing the matter to be submitted to the referee, because the report and findings of the referee are certainly well within the directions made, and if the court could properly consider the report of the referee and the findings on the same basis as it could properly consider the report of a referee in ordinary proceedings, or as it would consider findings of a trial court on appeal, then we would have no difficulty in sustaining the findings of the referee. In the consideration of an appeal, if substantial evidence exists to sustain a finding we will not, as a general rule, disturb it, the decision of the trier of the facts being final thereon, even though substantial evidence may exist in the record against such a finding. But in a mandamus proceeding the procedure is quite different, as it must be apparent that conflicting evidence for and against a given proposition can, and often does, create a reasonable dispute; and it is the rule that mandamus will not lie where the facts are in substantial dispute, that before a writ will issue "the legal right of relator to the performance of the act sought to be required must be clear, complete and not open to reasonable dispute." 38 C.J. p. 582, secs. 56 and 57; State ex rel. Fleeson v. Jumbo Extension Mining Co.,
4. It is also the rule that the title or right to an office will not be determined in a mandamus proceeding. *412
38 C.J. p. 589, secs. 63, 64, and 66; Denver v. Hobart,
5. The office of mandamus is essentially that of enforcing performance of acts which the law requires to be done because of legal relationships that have been established, and if the right is not clear and specific and can be disputed in good faith and upon reasonable ground, then a party must be relegated to his ordinary legal remedy to determine the rights and relationships. Such being the proper office of the writ of mandamus, then it is apparent that the order submitting the cause to the referee for trial of facts was broader than it should have been.
6. Upon the formulation of the issues, the first and principal question presented for the determination of this court was whether or not it appeared from the evidence that a substantial dispute existed, and the order to the referee should have been limited to a direction to take the evidence and submit the same to this court for its determination on that point. The order to the referee was made with the consent of respondents, but we do not believe that such consent could enlarge the proper function of the writ of mandamus. Taking the view that this court should confine itself to a consideration of the evidence with the sole view of determining whether or not "the legal right of relator to the performance of the act sought to be required is clear and complete and not open to reasonable dispute," we will disregard the response of the referee to that portion of the order of reference which is beyond the proper limitations of this inquiry.
Confining our inquiry to a consideration of the evidence presented with a view of ascertaining whether or not there is a substantial dispute, we conclude such a conflict exists, both as to questions of fact and legal questions. A recitation of the evidence would, of course, be of no assistance as a matter of precedent in other cases, hence we refrain from quoting it.
Relator asserts that the question of whether or not *413
there can be relief given by mandamus in this action has been foreclosed by the holding of this court in the case of State ex rel. Garaventa v. Garaventa Land Livestock Co.,
Relator asserts that the test of the disposition of the referee's report is not whether there is a substantial dispute, but whether there is substantial evidence in support of said report, and that said report should be considered in the same manner as a special verdict. From what we have said as to the proper office and function of a writ of mandamus it follows that this contention cannot be sustained.
Relator further asserts that the office of secretary is not in substantial dispute, for the reason that respondents do not deny in their answer that relator was the de jure secretary prior to July 1, 1941; that the denial made by the respondents in this respect creates a negative pregnant and constitutes an admission that for some period less than "for years" relator was the duly elected secretary. The demands made upon respondents for inspection of the books and records were on August 2, 1941, and on August 8, 1941, and this action was commenced on August 22, 1941. The issue presented is whether or not relator was a stockholder and the secretary and a director of the corporation on those dates. These are the material facts to be determined, *414 and the allegations of the complaint as to those dates are directly and specifically denied by the answer.
7. A reading of the evidence taken by the referee at once convinces us that substantial disputes, both as to the facts and as to the applicable law, exist. And if this were not sufficient, a reading and consideration of the exhaustive analyses and arguments made by counsel in attempting to sustain certain propositions asserted and denied leaves us completely convinced that our conclusion is correct.
The writ is denied.
Addendum
Relator bases his claim of error in the allowance of said item of $73.80 upon the ground that rule VI, section 1, of the rules of the supreme court, authorizes the recovery of costs for one copy only of the transcript, whereas respondents have asked for payment for three copies.
Under the interpretation which this court placed upon said rule in the case of Curti v. Franceschi,
The said cost bill is ordered to be amended so that the said item of cost shall read $36.90, in lieu of $73.80. *416
