State ex rel. Harvey v. Plankinton Arcade Co.
195 N.W. 904
Wis.
1923
Check Treatment
Owen, J.

In this аction the.relator seeks to obtain exactly the same relief sought in State ex rel. Harvey v. Plankinton Arcade Co., decided herewith (ante, p. 20, 195 N. W. 903), with this difference: in that action he based his righ! for аn inspection of the books of the corporation upon the fact that he was a stockholder therein; in this aсtion he seeks to base his right upon the fact that he was a director of the corporation, and that an inspection of the books and accounts thereof was necessary to enable him to perform the duties of his office аs director. In this case five members of the board of directors are made parties defendant in addition to the officers of the company made defendants in that case. In the return to the alternative writ the pendency of the othеr case was set up by the defendants as a plea in abatement. This plea should have been sustained. In this case the alternative writ issued on the 22d day of November, 1922. The order overruling the demurrer to the petition and denying the motion to quash the alternative writ in the former action was made November 9, 1922, and an appeal was taken therefrom on the 14th day оf November, 1922. When this ac•tion was commenced, therefore, the former action was pending and relator should not have been permitted to proceed with the present action unless the relief, or some portion thereof, sought in this proceeding could not be afforded him in the proceeding then pending.

The right of a stockholder to inspect thе books of ‍‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌​‌​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​​​‍a corporation is positive, full, and complete. State ex rel. Dempsey v. Werra A. F. Co. 173 Wis. 651, 182 N. W. 354. A director has no other or greater rights in this respect than any stockholder of the company. The court could award no other or different inspection in this actiоn than could *26have been awarded in the action then pending. No right could be established or secured herein that could not be established and secured in the stockholder’s action. Under such circumstances the second action should be abated. See 1 Ruling Case Law, 10 et seq.; 26 Cyc. 184, and cases there cited. The fact that in this case five directors were made рarties defendant who were not parties to the pending action is of no significance. The only persons necessary to have before the court in order to enforce the right of inspection are those officers having custоdy and control of the books of the corporation. The relief ‍‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌​‌​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​​​‍which the court may afford the relator can be no broader or more complete in this action than in the former by reason of the fact that five members of the bоard of directors are here made parties defendant. As the plea here considered was sufficient to abate the action, it becomes unnecessary to consider' other similar pleas set up in the return.

The return also set up by way of counterclaim certain misconduct on the part of the relator in his official capacity as seсretary of the company, which office he' held from the 27th day of December, 1920, until the 29th day of December, 1921, and asks that by reason of such misconduct as secretary of the company he be removed from his office as a director thereof. Whether a counterclaim may be pleaded in a return to a writ of mandamus is a question that seems not to have beеn considered in this state. Such practice was not permitted at common law, although it appears to have bеen sanctioned, at least sub silentio, in a few states. 26 Cyc. 460, and cases there cited. It is not necessary ‍‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌​‌​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​​​‍for us to decide whethеr in any case such practice is permissible in a mandamus action, because the facts alleged in the counterclаim do not bring it within any of the cases specified within sec. 2656, Stats., which prescribes the conditions under which a counterclaim may be pleaded. .

Appellants claim that the counterclaim falls under the first and third specifications of that section. Those provis*27ions authorize the pleading of a counterclaim arising ‍‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌​‌​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​​​‍out of the following causes of action:

“(1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.”
“(3) Where the plaintiff is a nonresident of the state any сause of action whatever, arising within the state and existing at the commencement of the action, except that no claim assigned to the defendant shall be pleaded by virtue alone of this subdivision.”

Clearly the counterclaim does nоt fall under the first subdivision. The cause of action attempted to be set up in the counterclaim does not arise out of the transaction set forth in the petition as the foundation of relator’s claim nor is it connected with the subject of rеlator’s cause of action. In order to be pleadable under the third subdivision it must appear that the relator is a nоnresident of the state. This fact is a necessary allegation of the counterclaim, as it constitutes the very foundation of the right to set up the counterclaim where it ‍‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌​‌​​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​​​‍is not authorized by the other provisions of sec. 2656. There is no such allegаtion in this counterclaim, although we gather from allegations contained in other parts of the return that during the year when thе relator was secretary of the company he was a nonresident of the state. Such allegations, however, are not incorporated in the counterclaim by reference, and the right of the defendants to set up the -counterclaim must be decided by the allegations contained therein. For these reasons the demurrer to the counterclaim was properly sustained.

By the Court. — So much of the order as sustained the demurrer to the second plea in abatement is reversed, and cause remanded with directions to overrule the demurrer to the second plea in abatement. In all other respects the order is affirmed.