174 Mo. App. 589 | Mo. Ct. App. | 1913
Lead Opinion
This is a proceeding in mandamus brought by relator to compel the Bank of Conception to acknowledge and treat him as a stockholder in said bank, to restore his name on the stock book and records thereof as a stockholder owning three shares of its capital stock of the par value of $100 per share, and to do such other act or acts as may be needful and necessary to fully and completely restore said relator to all the privileges, rights and benefits of a stockholder in said corporation. Upon the issuance and service of the alternative writ, the bank appeared and filed, finally, a second amended return, to which relator replied, and upon these, the alternative writ, the second amended return and the reply, the case went to trial. The court, after hearing the evidence, declined to issue the peremptory writ and relator appealed.
There is practically no dispute over the material facts. The bank was a corporation with a capital stock of $15,000 comprising 150 shares of the par value of $100 each; and relator was a young man twenty years of age who owned three of such shares which he had received as a gift from his father. In April, 1907, the bank became hopelessly insolvent, and was declared so by the State Bank Examiner who took charge of it and
After the bank reopened and was doing a prosperous business, relator demanded recognition as a stockholder. The bank refused to accord this to him, although prior to the reorganization, full opportunity was given relator to examine the books and assets of the bank in order that he might determine for himself whether or not it was insolvent. Upon being denied recognition as a stockholder in the reopened bank, relator brought this suit in mandamus to compel the bank to accept and treat him as such “and to do such other act or acts as might be needful and necessary to fully and completely restore relator to all the privileges, rights and benefits of a stockholder” because of the certificate of three shares owned and held by him.
As stated before, the trial court, after hearing the evidence, refused to issue the peremptory writ, and we are asked to review its action in that regard.
It will be observed that the question for our consideration is not whether mandamus is a proper remedy for a stockholder to invoke under ordinary circumstances where he is being denied his rights in the corporation to which he claims to belong, and in which the issuance of the peremptory writ will affect only re
Mandamus is a legal and not an equitable remedy. [26 Cyc. 141; Merrill on Mandamus, sec. 3.] Of necessity it is a stern, harsh writ, and, when issued, is an unreasoning, inflexible, peremptory command to do a particular thing therein specified without condition, limitation or terms of any kind. Its office is to execute, not to adjudicate; nor can it ascertain or adjust mutual claims or rights between the parties. Being of such a nature, it is not- a writ of right to which relator is entitled without regard to the circumstances under which he is demanding its use. Whether it shall be granted or refused rests in the judicial discretion of the court applied to the situation before it and governed by certain established principles and rules of law. The writ is employed only in unusual cases where other remedies fail; the relator must in all cases substantially demonstrate not only the propriety but the justice of his case; the court is not bound to take the case as relator presents it, but may consider defendant’s rights, the interest of third persons, the importance or unimportance of the case, and the applicant’s conduct in determining whether or not the writ shall go. [26 Cyc. 144.] In some cases it is held that even where a clear prima facie right to the writ is shown, it may be refused. [26 Cyc. 145; State ex rel. v. Bridge Co., 206 Mo. 74, l. c. 134; Merrill on Mandamus, sec. 62; People v. Rock Island, 215 Ill. 488.] It should not issue to compel a technical compliance with the letter of the law in violation of its plain intent and spirit. [Wiedwald v. Dodson, 95 Cal. 450.] It is never
Relator refused to do anything to help put the bank on a solvent basis so that the State Bank Examiner would permit it to reopen. Upon his refusal either
In fact the proposed .granting of the writ upon the condition named is nothing more nor less than a proposal to grant the writ upon equitable terms. And that too in an inflexible extraordinary legal proceeding which has nothing to do with equity; and in the consideration of which no equitable rights or principles can be taken into consideration except solely for the purpose of determining whether or not the writ should issue. Up to the point of issuance, the court
Since relator has another remedy in which all matters can he fully investigated without danger of
Appellant, in a supplemental brief, insists that the return to the alternative writ did not specifically deny the allegations of the alternative writ, and, therefore, no issue was tendered, and consequently the trial court could do nothing but issue the peremptory writ. The return may, however, instead of denying the allegations of the alternative writ, set up facts showing why the writ should not be issued. [26 Cyc. 452.] The court is not bound to take the case as the applicant puts it, but may consider all the facts in determining whether the writ shall go. [26 Cyc. 144.] The.return might be said to be in the nature of a plea by way of confession and avoidance, thát is, confessing the facts but seeking to prevent the writ from issuing because of the peculiar situation. This method is approved in State ex rel. v. Beyers, 41 Mo. App. 503, l. c. 507-8. In Chicago v. People, 215 Ill. 235, the return did not dispute the facts but attempted to avoid the issuance of the writ by setting up other facts. The court held this was proper if the facts alleged were sufficient. Such facts might be sufficient to absolutely forbid the court granting the writ, or they might-be only such as would address themselves to its sound judicial discretion, and if the court exercised it in refusing the writ, such action should be affirmed unless that discretion has been abused. Finding that it has not been abused, the judgment is affirmed.
I will add to the foregoing opinion that there is a class of cases bearing snch near relation to this as to be closely applicable thereto. They are eases where a transfer of stock has been made and the transferee denied recognition in the corporation and his stock nullified. It is held that he has no right to a writ of mandamus for the reason that there are other specific remedies. It was directly so ruled by our Supreme Court. [State ex rel. v. Rombauer, 46 Mo. 155.] In Murray v. Stevens, 110 Mass. 95, the court, in speaking of mandamus to compel the issue of shares of stock, said: “Without undertaking to lay down an invariable rule on the subject, we think it must be said that this process was not intended, and is not well adapted, for the trial of mere questions of property. Where the relator merely seeks to be put in possession of corporate shares which have an ascertainable market value, or which can be bought in the market; and where the incidental rights of ownership (such as eligibility to corporate offices, or the right to vote at corporation meetings) do not depend upon the ownership of the specific shares which are the subject of dispute, but could be as well and fully enjoyed by virtue of the ownership of an equal number of other shares, there would seem to be no occasion to resort to the extraordinary remedy of mandamus.” Affirmed in Stackpole v. Seymour, 127 Mass. 104.
In Shipley v. Mechanics Bank, 10 Johns. 484, the bank refused to recognize a transferee of stock or to allow the stock to be transferred to him. The court said: “There is no need of the extraordinary remedy by mandamus, in so ordinary a case. It might as well be required in every case where trover would lie. It is not a matter of public concern, as in the case of public records and documents; and there cannot be any necessity, or even a desire of possessing the identical
Other cases directly in point, are Birmingham Fire Ins. Co. v. Commonwealth, 92 Pa. St. 72; Wilkinson v. Providence Bank, 3 R. I. 22; Baker v. Marshal, 15 Minn. 177; Durham v. Monumental Silver Mining Co., 9 Ore. 41; Kimbal v. Union Water Co., 44 Cal. 173; Galbraith v. Building Assn., 43 N. J. L. 389; Freon v. Carriage Co., 42 Ohio St. 30.
It is evident that if relator was to accomplish what he seeks by the aid of mandamus, he would be placed in a situation of equality of authority and profit in those things which it is claimed the management, effort and money of other persons have brought about. In the opinion by Judge Trimble' we have shown that there is a procedure open to him whereby it may be unconditionally commanded that he be put into that position if he is so entitled; or whereby, on equitable adjustment, he may be put there conditionally on his doing equity; or, if equity so demands in the circumstances of the showing which may be made, that he be compensated for whatever loss he may have sustained by the conversion of his stock. There seems to be no good reason , why he should not be remitted to such procedure; or, if he so chooses, to an ordinary action at law for damages for loss of his stock.
I think the judgment should be affirmed.
Rehearing
ON MOTION FOR REHEARING.
It is earnestly insisted, in a motion for rehearing, that the opinion proceeds upon a mistaken view of the facts when it says the trial was had upon the alternative writ, the second amended return, and the reply; that the second amended return was not
In the first place appellant did not see fit to incorporate the prior returns in the abstract. Only the second amended return is set out therein, so that we cannot say with absolute certainty that no allegation in reference to the insolvency of the bank was contained in said prior returns.
But, however this may be, it is not material whether they did or not, since the court did not err in allowing the second amended return to be filed. The parties stipulated in open court that it could be so filed. Counsel for appellant is not the same counsel who tried the case, and for this reason may, perhaps, be excused for overlooking this solemn agreement made, between the parties at the beginning of the trial:
“By.the Court: It is agreed by the parties that after the evidence'is in either the relator or respondent shall have the privilege of amending any pleading in the case so as to conform to the facts.
“By Mr. Moran, counsel for relator. That is the agreement.
“By Mr. Cummins, counsel for respondent. All right.
“By the Court. Or that otherwise becomes necessary in their judgment.”
It cannot be successfullly claimed that the above agreement was limited to the evidence heard at that time. Because the agreement was that “after the evidence is in” either party should have the privilege of “amending any pleading so as to conform to the facts.” And the fact that there was an interval between the evidence taken at that time and the evidence heard later, and that said second amended return was not filed until after this last evidence was in, cannot
“By Mr. Moran, counsel for relator. There is an oral agreement between Mr. Cummins and myself that all the testimony taken at the former trial be received in evidence at this hearing.
“By the Court. All the evidence heretofore taken.
“By Mr. Cummins, counsel for respondent. That ' is my understanding.
“By the Court. This is but a continuation of the case and all the evidence heretofore taken is before the court, and now we are to hear additional evidence simply.
“By Mr. Cummins. That is my understanding.
“By Mr. Moran. Very well.”
At this portion of the hearing both appellant and respondent offered evidence in behalf of their respective sides, and when all the evidence was in, respondent, pursuant to the stipulation, and by leave of court, filed the second amended return. And appellant filed a reply thereto. It is true, objection was made to the filing of said second amended return, but such objection could not overturn the solemn agreement theretofore entered into. And the contention was not made then that this agreement related only to the evidence taken at that time, but that no agreement whatever had been made according to counsel’s recollection. So that, in legal effect, the case was tried on the alternative writ, the second amended return, and the reply, as stated, for the sake of- brevity, in the opinion.
The other matters complained of in the motion can have no possible effect on the result reached. The motion is, therefore, overruled.