No. 5171 | Wash. | Dec 17, 1904
The respondent brought this suit against the Lucile Dreyfus Mining’ Company, a corporation. The complaint, in effect, alleges that on or about December 2, 1902, the respondent was the owner and holder of 127,000 shares of valid stock of said company; that on said date he surrendered and delivered the certificate therefor to the company, for transfer of the stock to his name and .account, on the books of the corporation; that, with full knowledge of the surrender of said certificate for said purpose, the secretary then issued to him, in lieu of the former one, a certificate for 127,000 shares; that the corporation denies the validity of the stock thus issued, refuses to recognize and classify it as valid, and to make an entry of it upon the books of the company, although the same has been demanded by respondent; that the by-laws provide that each stockholder shall have two weeks written notice, by mail, of the meetings of stockholders; that, without giving respondent said notice, or any notice 'whatever, the secretary of the company has notified some of the stockholders of a meeting to be held December 7, 1903, for the election of trustees; that the corporation threatens to exclude, and unless restrained will exclude, respondent from exercising any of the rights of a stockholder, and will deny him the right to vote his stock at any and all stockholders’ meetings, and to participate in the election of trustees; that, after December 1, 1902, the secretary of the. corporation, while acting as such, issued and circulated certificates purporting to represent stock of the company in excess of its capital stock, to the extent of more than 1,000,000 shares, which certificates are held by divers persons who, at said meeting, threaten to vote, and unless restrained will vote, the same as valid stock, and thereby control the management of the company;
In response to notice of intention to apply for a restraining order pending the suit, the corporation appeared on December 7, 1903, and resisted said application. A restraining order was, however, issued, by the terms of which the corporation, its trustees, officers, agents, employees, and all persons under its control, were enjoined from holding a meeting of stockholders for the election of trustees on December 7, 1903, or any adjourned meeting, until the further order of the court.
On the following day, December 8, 1903, respondent filed in the action a supplemental complaint, in which he alleged that, pursuant to the notice of the stockholders’ meeting mentioned in the original complaint, as given to a part of the stockholders only, the same to be held December 7, 1903, various alleged and pretended stockholders of the corporation met at the office of the company, at the hour of four o’clock, P. M., on said day, and assumed to convene a stockholders’ meeting; that at said meeting these persons assumed to take control of the
In response to notice of intention to apply for an additional restraining order, under the supplemental complaint, the corporation again appeared and resisted the application. A restraining order was, however, issued enjoining the corporation, its trustees, officers, stockholders and all persons under its control, from holding stockholders’ meetings for the election of trustees or any other purpose, and particularly from holding any meeting under the notice aforesaid, or any adjourned meeting thereof. The same persons were also restrained from in any way changing the records of the stock or other accounts, from changing the by-laws or management of the company, from assuming .to pass upon the validity of the stock or voting the same, until the legally authorized stock, and the persons entitled to it, have been fully determined by a court of competent jurisdiction, or until the further order of the court.
Thereafter the appellants here, having obtained leave, filed their complaint of intervention in the cause, and moved the court to dissolve the restraining 'order above mentioned. The motion to dissolve was denied, and from said order of denial the intervenors have appealed.
Respondent moves to dismiss the appeal upon the ground that no notice of appeal was served upon the
The intervenors’ complaint alleges that they are stockholders in the defendant corporation, and that they represent, in their own right and by proxy, a majority of the genuine stock of the corporation. Many allegations of the original and supplemental complaints are denied but it is admitted that a large amount of spurious stock has been circulated. It is alleged, however, that it was done by the secretary’s forgery, as his own felonious act, and that he neither acted for the defendant corporation, nor with the knowledge or consent of its officers. They deny the validity of respondent’s stock, and, on the claim that their own is valid, they seek to be released from the effects of the restraining order so that they may go on and hold stockholders’ meetings. Pending the hearing of the issues thus joined, they moved for the dissolution of the restraining orders, and, having appealed from the denial thereof, they now urge that the defendant corporation is not such a party here as requires the service of notice of the appeal upon it. They say that they are not attempting to appear for the corporation, but are seeking to vindicate a personal legal right which pertains to them simply as stockholders, a right in which
They came into this action, however, and asked to he allowed to become parties when the corporation was the sole defendant. It had appeared to resist each restraining order, and each one was directed against the corporation. They are, therefore, parties, and, with the corporation, seeking to have undone what it endeavored in advance to prevent. Their complaint in intervention names the corporation as a party thereto, and denies allegations of the original complaint, which have not been denied by the corporation. Why has not the corporation an interest or concern as to who shall hold stockholders’ meetings, assuming to decide who shall control its assets, affairs, and policy? The corporation represents all the valid stockholders, and they are vitally interested. Appellants assert that their stock is admittedly genuine, but we find in the statement of facts an affidavit to the effect that it is impossible for the corporation to determine from its records who are genuine stockholders, until the suit it has brought to test that matter shall be determined, and that “the stock of each and all of the intervenors, and the proxies shown by them, is involved in the said action, and the question as to whether or not it is valid stock of the defendant company has not yet been determined.” This is not a direct denial of validity, but it is as nearly such as the uncertain circumstances shown by the record seem in conscience to permit. It at least shows that the matter of its validity is in suspense. In fact, the allegations of the pleadings and the affidavits in this record are such as make it seem to us that nothing short of a judicial determination will establish who are stockholders of the defendant corporation, and entitled to hold its stockholders’ meetings. In that
For the reasons hereinbefore stated, we think this case should not be distinguished from the above qited ones, and the appeal is therefore dismissed.
Fullerton, C. J. and Mount, Anders, and Dunbar, ■ JJ., concur.