10 Nev. 141 | Nev. | 1875
By the Court,
This is an information in the nature of a quo warranto originally brought in this Court, to determine the title of respondents to the office of trustees of the Homan Capital Gold and Silver Mining Company.
It appears from the pleadings and evidence that the Homan Capital Gold and Silver Mining Company was incorporated under the laws of this State, and organized on or about the 15 th day of November, 1872; that Antonio Sitaro (one of the respondents herein), Nicolo Soffia and the relator, were selected as the trustees to manage the .concerns of .the corporation for the first six months, and at the first meeting of said trustees the relator ivas elected president, and the respondent Thomas Pettineli was elected secretary of the company. The time designated by the by-laws of the company for the election of trustees to succeed those thus selected, passed without an election being held, and there was no attempt to convene the stockholders for that purpose
The capital stock of the corporation is divided into six thousand shares, and persons representing and claiming to represent the whole thereof, assembled at the time and place designated in said notice, and among whom the president and Antonio Pitagna were the first to arrive, and each having in his possession fifteen hundred shares of the stock which was then standing in their respective names upon the transfer books of the company. Soon thereafter, the secretary, with others representing the other half of the stock, entered the room, and there being two tables in the room, at one of which the president was seated, the secretary and those who came with him placed themselves at the other. The stockholders having thus assembled, the president called the meeting to order, read the notice convening the same, and exhibited his certificates representing fifteen hundred shares of the stock, and placing the same upon the table requested the other stockholders present to exhibit theirs also. Thereupon Antonio Pitagna exhibited and placed upon the president’s table certificates representing fifteen hundred shares thereof. No others exhibiting or presenting any certificates of stock, the president requested the secretary to come to his table and proceed with the election of officers. Instead of complying with the president’s request, the secretary replied, “If you want a meeting come to our table;” and thereupon, at the suggestion of one Montgomery, ivho claimed to represent as proxy for Henri-etti Pettineli, wife of the secretary, fifteen hundred shares standing upon the books of the company in her name, those who came to the room with the secretary proceeded to
But if tbe meeting bad been regularly called, tbe claim of respondents could not be sustained, because there was no organization or regularity in tbe proceeding. What occurred at tbe secretary’s table, and which is relied upon by respondents, cannot in any sense be regarded as an election. Article 7 of tbe by-laws provides that “tbe president, when present, shall preside at all meetings of tbe company, and at tbe board of trustees; and in bis absence a president pro tempore shall be chosen.” * * * This provision of tbe by-laws was totally disregarded. Tbe president, although present, did not preside at tbe election, nor was there a president pro tempore chosen in bis stead; and no person who participated in tbe proceeding was authorized to receive tbe ballots, of to declare tbe result; hence, it follows that there was no legal election, and that tbe relator and Nicolo Soffia, together with tbe respondent Antonio Bitaro, constitute tbe legal board of trustees of tbe company, and are entitled to exercise tbe duties thereof.
It only remains to consider tbe proper judgment to be entered in tbe case.
It does not appear that Thomas Pettineli intruded himself into tbe office, or at any time claimed to exercise tbe office of trustee; therefore, tbe writ must be dismissed as to him.
Tbe respondent Antonio Sitaro, being one of tbe trustees selected to manage the concerns of the company for tbe first six months after its organization, and not having been legally superseded, is entitled to exercise tbe same under that appointment. But in bis answer, be claims to exercise tbe office only by virtue of tbe pretended election of April 6, 1874; therefore, judgment must be entered that tbe said Antonio Sitaro be ousted and altogether excluded from such office; but to bo so entered as not to affect bis right to exercise tbe offieo of trustee of said company by virtue of bis original appointment.
It appearing that tbe respondent Dominico Gárgaro is
Judgment is so ordered.