Page images

It ap

they pray for relief in accordance with the pass upon, in this decision, a few of the erdenials and averments of their answer. rors assigned.

Upon the issues thus made the cause was Counsel for appellant first contend that the tried to the court without a jury, and a great judgment and decree of the lower court does deal of evidence was taken on the trial. not provide a specified time in which respondJudgment was entered in favor of the plain ent shall pay to appellant the sum of $900, tiff, from which judgment this appeal is tak the balance due on the purchase price, and eu. As this action is based upon the contract turn over to him 100,000 shares of stock, and and declaration of trust hereinbefore set that it does not provide that respondent shall forth, we will first consider the duties as proceed to work, prospect, and develop their sumed by Clarence Cunningham in the execu property in dispute until the proceeds of the tion of said contract. However, before tak 900,000 shares of stock at 10 cents per share ing that up in detail, we will state some of shall have been expended. On an examinathe facts that appear from the record. On tion of the judgment, we find that it provides May 15, 1900, an option for the purchase of in part as follows: "It is further ordered, (ertain mining claims, including at least a adjudged. and decreed that the defendant part of those mentioned in said contract, Abner G. Kerns, upon delivery to him by was given by the defendant Kerns and the the plaintiff of the $900 due under the consaid Elom, now deceased, to Clarence Cun tract herein, with legal interest from the ningham, for $12,000. A considerable amount time the same became due until May, 1905, of work was done upon said claims under and upon the delivery to said Kerns of one this option by Cunningham and his associ hundred thousand (100.000) shares of the antes. By mutual consent that option was capital stock of said plaintiff corporation, terminated, and in October, 1900, a new paid up to the amount of 10 cents per share, contract was entered into. Under the new do forthwith execute and deliver to the plaincontract work continued during several tiff, Glympia Mining Company, a good and months. Thereafter, in February, 1901, said sufficient deed conveying to said plaintiff an Elom died, and after his death the contract undivided three-fourths interest in and to the sued on herein was entered into.

said above described mining claims; that, in pears that this last contract was really a the event of his failure to execute and decontinuation of the two former ones, except liver such conveyance within 30 days after ing that it was on more liberal terms. At

the entry of this decree, then and in that the time the first contract was entered into

event Stanley P. Fairweather, Esq., clerk of Cunningham had associated with him several

this court, and, in case of his death or inpersons, residing in Spokane and elsewhere,

ability to act, then his successor in office, is who carried on the work and development of

hereby appointed as a commissioner of this said mining claims as an association doing court, and as such commissioner is hereby orbusiness under the name of the Olympia Min dered and directed in the name of the defending Company. It appears that the work un ant to execute and deliver to the plaintiff a cler the first two contracts was practically deed conveying to it the said three-fourths continuous up until the time of entering into interest in said mining claims above describthe contract sued on herein. The defendant

ed. And it is further ordered and adjudged Kerns was aware of the fact that Cunning- l that said deed of said commissioner, when ham had associates connected with him in executed and delivered, shall have the same said matter, and, we think, understood that force and effect as though executed by the these associates were assisting Cunningham defendant." in the payment of the development work It will be observed that that provision done on said mines, and that Cunningham of the judgment or decree is not in accordand his associates expended something over ance with the terms of the contract sued on, $21,000 in such development work; and it which contract is above set out in full in this also appears that Kerns subscribed for 10,000

opinion. Under that provision of the decree shares of the stock of said corporation, to be it is provided that Kerns, upon the payment thereafter formed, at 10 cents per share, and to him by plaintiff of $900 and the delivery paid the sum of $50 on such shares, leaving to him of 100,000 shares of the capital stock a balance of $950 owing to said corporation. of said corporation, "paid up to the amount

It is contended, in limine, by counsel for of 10 cents per sbare," should forth with exrespondent, that, as some of the questions ecute and deliver to the plaintiff a good and raised on the rehearing were not raised on sufficient deed to an undivided three-fourths the original hearing, they cannot now be con interest in the mining claims mentioned, and sidered. In reply to this we say that the re that, in the event of his failure to do so withhearing was granted generally, and upon no in 30 days after the entry of the decree, then specified points or questions, and therefore in that event the clerk of the court should any questions that could have been properly make such conveyance. Of course, the decree raised on the original hearing could be pre provides that Kerns shall make such deed sented on the rehearing. But, as we under upon the payment of said sum of money and stand the record, the appellant Kerns did the delivery of said shares of stock; but it raise the questions referred to on the first provides that, in case he fails to execute and hearing. As we view this case, we need only deliver such deed within 30 days after the

entry of this decree, the clerk shall execute that the "parties" were to form a corporathe deed, regardless of whether said $900 hadtion, and the “parties” were Kerns and Cunbeen paid and said 100,000 shares of stock de ningham. Now, it appears from the record livered. For that reason said provisions of that Kerns was not consulted in any manner the judgment are not in accord with the cove in the formation of the foreign corporation, nants in said contract. Said judgment pro the Olympia Mining Company, and that vides that the respondent shall deliver to said corporation was organized under the Kerns 100,000 shares of the capital stock of laws of the state of Washington; and it is said corporation, "paid up to the amount of earnestly contended by counsel for respond10 cents per share," while the contract pro ent Kerns that the organization of such corvides that said corporation shall deliver to poration is not in compliance with said Kerns one-tenth of its capital stock, which, terms of the contract. It appears from the on the basis of 1,000,000 shares, would be record that Kerns insisted that the corpora100,000 shares, and provides as follows: tion should be organized under the laws of "Which stock shall be fully paid up and non the state of Idaho, and thereby become subassessable until after all of the other nine-ject to

ject to the jurisdiction of the courts of tenths of the stock have paid 10 cents per this state, the same as a private individual. share to said corporation for the develop- | Under the provisions of the contract Kerns ment of said mining claims.” It will be ob had a right to insist on the organization of served from this provision of the contract, such corporation under the laws of the state that the 100,000 shares of stock to be deliver of Idaho. That being the conclusion we have ed to Kerns was to be fully paid up-not, as

reached after a careful consideration of this provided in said decree, “paid up to the case on the petition and arguments on the amount of ten cents per share," but fully rehearing, the decision of that question ends paid up and nonassessable until all of the this case; for, until a corporation is organizother nine-tenths of the stock have paid 10 ed in compliance with the provisions of said cents per share to said corporation for the contract, neither Cunningham nor the redevelopment of said mining claims. Under spondent corporation can enforce the provi. the decree the 100,000 shares of stock to be sions of said contract against Kerns. Undelivered to Kerns were to be paid up to the til a corporation has been organized unamount of 10 cents per share, when under der the provisions of the contract, and has the contract it was to be fully paid up and fully complied with the terms and provisions nonassessable until all of the other nine of said contract, the contract cannot be entenths of the stock had paid 10 cents per forced against Kerns. As that is a controlshare in assessments toward the develop ling question in this case, it is not worth ment of said mining claims. If Kerns' stock while for us to consider the other questions was to be paid up to the amount of 10 cents raised. on the share only, the par value being $1, it Under the provisions of this agreement would leave his stock at the mercy of the Kerns was entitled to the same voice as "mutatious whims" of the other stockholders Cunningbam in the organization of the corin creating indebtedness in the operation and poration. It is true that it would take more development of said mines; and, if they fail than two persons to organize a corporation ed to pay any and all indebtedness incurred under the laws of this state, or, for that in the development of said mines up to matter, under the laws of Washington. Still, $90,000, the creditors could recover of Kerns had the corporation been organized in complito the extent of 90 cents per share on his ance with the provisions of this agreement, stock, as the stock mentioned in said decree | Kerns would have been entitled to a voice in is only paid up to the extent of 10 cents per the selection of the other directors and inshare.

corporators, and he would also have been We held in the former opinion that under entitled to a voice in determining where the the provisions of said contract Cunningham corporation should be organized, whether it had obligated himself to organize the cor should be a domestic or foreign corporation. poration referred to in said contract, and Again, after the organization of the corporathat the organization of the respondent cor tion, under the cumulative method of voting poration was a sufficient compliance with stock at stockholders' meetings (article 11, said provisions. The provision of said con § 4, Constitution), Kerns might have been tract in that regard is as follows: "Whereas, able to name at least one director, and would it is the desire of the parties hereto to pur by this method have been enabled to have a chase the interest of said estate in said prop continuing voice in the business and affairs erties, if the same can be bought for a rea of the corporation. While it is true the sonable sum and upon reasonable terms, for contract does not provide in terms that the the purpose of consolidating all of the in corporation to be organized should be a terests therein, and forming a mining cor domestic corporation, at the same time the poration to prospect, develop and work said appellant had reserved to himself by the mining claims." Under the provisions of terms of the contract as much power and that clause of the contract it was the desire authority and an equal voice with the other of the "parties" thereto to form a corpora party to the contract. The corporation could tion, and the clear inference therefrom is not own any property, and had no corporate

91 P.-7

stock to be represented by stockholders until at any certain time the $900, with interest after it was organized. Therefore Kerns thereon. It is not required to deliver to said would have had as much power and au Kerns one-teath of its capital stock, which thority in the matter of the organization as stock should be fully paid up and nonassessCunningham, even though Cunningham and able until after all of the other nine-tenths of his associates were to own nine-tenths of the the stock bas paid 10 cents per share to said capital stock after the organization. The corporation for the development of said contract is not one providing for Cunning mining claims. The provisions of the conham and his associates to organize a cor tract on which this action is based require poration, but for Cunningham and Kerns to those things to be done, and the judgment organize a corporation. A corporation organ utterly fails to give Kerns the relief he is ized under the laws of Washington, with its entitled to in this suit, if he is compelleil principal place of business in Spokane, and to perform his part thereof. its corporate stock books in a foreign juris The judginent entered in this case does not diction, is not the kind of a corporation conform to the provisions and requirements and the kind of protection that Kerns would of the contract entered into between the likely have sought or availed himself of,

appellant and Cunningham, and we have where he was turning over all his property concluded that it should be reversed, and a to the corporation and in turn taking a new trial granted. We are not in a position minority of the stock. The courts of Idaho to direct a judgment in this case. It has could not reach the books and officers for the now been more than a year since the case purpose of ordering a specific performance was tried in the lower court, and while it in directing issuance of stock, or requiring has been suggested, and even shown by afperformance of work, or directing, supervis- | fidavit, that no attempt has been made on the ing, or ordering assessments.

part of this respondent to comply with the It is next urged that the judgment does terms of the decree, still the matter is not not bind or obligate the plaintiff to the de- presented here in such a manner as to justify fendant Kerns, or to any of the defendants. us in ordering a judgment thereon. The conto perform its contract with Kerns, or to duct of the respective parties since the entry pay the $3,300 and interest to the Federal of this decree with reference thereto, and Mining Company, and that the evidence also touching the subject-matter and under shows that the defendant Kerns could not the contracts which were the basis of this maintain an action in Idaho against the action, will be proper subjects for consideraplaintiff for the specific performance of the tion, and they will necessarily influence the contract. Counsel for respondent declares trial court in the further proceedings bad this proposition to be absurd, for the reason herein. that respondent has an agent in Idaho au The judgment is therefore reversed, and thorized to accept service of process, and has the cause remanded, with direction to the mining property in this state in which it trial court to take such further action in the has invested over $21,000, and that ought to matter, in harmony with the views herein be ample to make such judgment collectible. expressed as to the law of the case, as may Counsel thus concedes that for a complete seem proper under any additional showing settlement of this matter it will require fur that may be made. Costs awarded in favor ther litigation, and that this judgment does of appellant. not settle all of the rights of the parties in the subject-matter of this litigation. It is AILSHIE, C. J., concurs. certainly cold satisfaction to the appellant to be informed that he may proceed and get judgment for the amount of money due him

(151 Cal. 407) and a decree for the delivery of the 100.000 CO

COSGRIFF v. BOARD OF ELECTION shares of stock. It is clearly evident that COURS OF CITY AND COUNTY the judgment is far short of what it ought to

OF SAN FRANCISCO et al. have been. The respondent should have been

(L. A. 1.982.) compelled to keep its tender of the $900 and (Supreme Court of California. June 19, 1907.) 100,000 shares of stock good. The contract

1. TIME-COMPUTATION-EXCLUDING FIRST OR clearly contemplates the performance of de LAST DAY-ELECTIONS-FILING CERTIFICATE velopment work on said mining claims to the or YomIXATION.

Pol. ('ode, $ 1192, as amended in 1901, proextent of $90,000, and it is admitted by coun

vides that certificates of party nominations may sel for respondent, in his brief filed the 2d

be filed not less than 20 days before the day of day of April, 1907, that neither that amount election. Ilcld, that a certificate of party nomnor no part of it has been expended in the

inations offered for filing on October 17th, con

taining the names of persons to be voted for at development of said mines, by stating that

an election on November 6th, was in time. said corporation had invested over $21,000 2. ELECTIONS-ACCEPTANCE OF CERTIFICATE FOR in said mining claims, wlich amount, the FILING. record shows, was invested long prior to the Where a certificate of party nominations commencement of this suit. Vnder this judy

was presented to the registrar of voters after

the hour prescribed by law for closing his office, ment the respondent, a foreign corporation,

but before it was closed, it was his duty to re is not required to pay to the appellant Kerus crise and file it.

In Bank. Application for a writ of man one day before every part of the succeeding damus by E. H. Cosgriff, to compel the board day. The last moment of any day is, in conof election commissioners of the city and templation of law in such cases, one day county of San Francisco and G. P. Adams, before the first moment of the next day, alregistrar of said city and county, to receive though the elapsed time is infinitesimal. The

rule is strictly one of convenience. Any othof nominations. Granted.

er method of computation would require an Page, McCutchen & Knight, for petitioner,

accurate account to be kept of the exact hour, Thos. V. Cator, for respondents.

ininute, and second of the occurreni'e of the act to be timed, would produce endless con

fusion and strife, and would prove impolitic, SILAW, J. This is an original proceeding if not wholly impracticable. By the method in manilan us to compel the board of elec stated, it is clear that the offer of October tion commissioners of the city and county

17th was in time. Manifestly, on that theory, of San Francisco, and G. P. Adams, as regis

the 5th day of November would be one day trar of voters of said city and county, to before the oth day of that month, and not receive and file in the registrar's office a cer less than one day before, since the number tificate of nominations of certain persons as

5 is one less than 6. So, by counting the concandidates of a political party, styling itself secutive days backward from November 6th, in said cerificate the "Nonpartisan Judicial it will be found that October 17th was 20 Party," to be voted for at the election in days, and if 20 days, then not less than 20 November, 1906, for the offices of justices of days before November 6th. This is what is the superior court and justices of the peace contemplated by section 12 of the Political of said city and county, and to compel said Code, declaring that in computing time by board and registrar to place the names of

days the first day is to be excluded and the said candidates upon the official ballots to last day included. Excluding November 6th, be used at said election, as party candidates, the first day, we find October 17th, to be the in a party column under said party name. twentieth day, or the last day of the period, The cause was decided for the petitioner by

and as it is to be included in the count, this court in October, 1906, and a peremptory

it must be counted as part of the period. writ was issued at that time, as prayed for. Thus, it makes the full number of 20 days The certificate of nomination, duly verified,

before the day of the election, and it cannot with the requisite number of signatures of be "less than 20 days before" that day. This electors thereto, was duly presented to the

application of the rule is well established. registrar for filing on October 16, 1906, after Misch v. Mayhew, 51 Cal. 514; Ilagenmeyer 5 o'clock in the evening. It was again duly

V. Mendocino Co., 82 Cal. 217, 23 Pac. 14; presented on October 17, 1906, during the Derby V. Modesto, 104 Cal. 522, 38 Pac. usual and lawful business hours. The offer 900; Bates v. IIoward, 105 Cal. 182, 38 Par. of October 16th was refused, because it was

715; Bellmer v. Blessington, 136 Cal. 4, 68 made after 5 o'clock in the afternoon, and Pac. 111; IIannab v. Green, 113 Cal. 21, 76 that of October 17th, because, as it is claim Pac. 708. ed, it was not made within the time limited The petition is in two counts. The first by law. It is provided in section 1192 of count presents the single question whether the Political Code, as amended in 19901, that or not the offer of the certificate after 5 being the law in force in 1906, that certifi

o'clock in the afternoon of October 16th cates of party nominations not made by a was a lawful offer with respect to the time party convention, but by electors signing the of the day at which it was made. A separate same and designating themselves as a politi

general demurrer to this count was filed, and cal party with a specified party name, may

the disposal of this demurrer renders it necbe filed "not more than 50 days nor less than essary to decide the question. While we do 20 days before the day of election.”

not hold that the registrar would be required The word “days," as here used, refers to to keep his office open for such business after a day as a unit of time, and not as an'aggre the hours prescribed by law, yet we have no gation of a certain number of hours, minutes, doubt that, in cases like this, where the politior seconds. In this sense, and for the pur

cal rights of citizens are involved, if he does pose thus r.sed, a day is not capable of suh keep his office open after those hours, it is division into hours, minutes, or seconds, but his duty to receive and file such a document, is to be taken as a whole. In such computa

though presented after the lawful hours. The tions the hours are not counted to ascertain certificate should have been received and whether a period of 24 hours, or a given

fileil when offered, and the names of the cannumber of such periods, have elapsed be didates should have been placed on the baltween the act to be done and the day from lots as party nominations, in a party column, which the time is to begin running. The under the designated party name. fractions of the days are no more taken into consideration than are the fractions of the We concur: BEATTY. C. J.; JOFARseconds. The consequence is that every day, LAND, J.; LORIGAY, J.; SLOSS, J.; HIENand every part of that day, is, by this rule, SHAW, J.; ANGELLOTTI, J.

(151 Cal. 458)

judges in one of the cases, while the third LAMBERSON V. SUPERIOR COURT OF was presented in support of the application TULARE COUNTY et al. (L.

for a change of judges in the other case. A. 2,013.)

Both actions are still pending. The first two (Supreme Court of California. June 25, 1907.) applications were met with counter affidavits 1. CONTEMPT_MISCONDUCT IN PRESENCE OF

and denied. The third affidavit contained COURT.

substantially all of the alleged defamatory An attorney, presenting to the judge in

and contemptuous matter embodied in the open court a scandalous affidavit in support of an application for a change of judges, commits

preceding affidavits, and went even further contempt in the presence of the court, within in attacking the integrity of the judge. Upon Code Civ. Proc. § 1211, providing that, where a presentation of this last affidavit, the judge, contempt is committed in the presence of the

believing that he could not with self-respect court, it may be punished summarily, etc., notwithstanding section 1209, subd. 12, defining

longer sit at the hearing of these causes, contempt, so that the court may proceed sum announced that John Bashore could have a marily or by citation to show cause, and may change of judges in any case pending in his allow a showing in defense, extenuation, or miti

court, whether theretofore denied or not, upgation. [Ed. Note.-For cases in point, see Cent. Dig.

on application, and without the filing of any vol. 10, Contempt, & 142.]

affidavit. He then issued a citation to peti2. JUDGES DISQUALIFICATION – BIAS

tioner to show cause why he should not, as AFFIDAVIT FOR CHAXGE-CONTEMPT-PRO the attorney for John Bashore, and as an CEEDINGS TO PUNISH.

officer of the court who had presented these A judge is not disqualified from sitting in

scandalous affidavits, be punished for conproceedings to punish an attorney for contempt, based on his presenting to the judge in open

tempt in so doing. This citation to show court an affidavit attacking the judge's integrity cause set forth at length the proceedings had and containing imputations on his motives. in the matter and the language of the affidavits [Ed. Note.-For cases in point, see Cent. Dig.

which the court regarded as unwarranted, vol. 29, Judges, 8 187.]

contemptuous, and deliberately designed to 3. SAME-MISCONDUCT CONSTITUTING CON

bring into disrepute himself, as judge, and TEMPT. A party after obtaining a new trial on ap

the court over which he presided. Petitionpeal for error in rulings at the trial presented er then applied for and obtained from the an affidavit in support of an application to district court of appeal an alternative writ change judges. The affidavit declared that the party believed that the judge's rulings were

of prohibition. The questions involved were made willfully and corruptly, and that the par

considered by that tribunal, and, upon disty believed that the judge knew that such rul agreement of the judges, the proceedings ings were erroneous, etc. Held, that the affidavit constituted contempt of court on the parı

were certified to this court. of affiant, notwithstanding Code Civ. Proc. $

Dealing first with the questions of pro170, subd. 4, acthorizing the filing of affidavits cedure which petitioner presents, this conin support of a motion for a change of judges tempt (assuming for the moment that a conon the ground that the party cannot have a fair and impartial trial.

tempt was actually committed) was one which [Ed. Note.-For cases in point, see Cent. Dig.

took place in the immediate view and presvol. 10, Contempt, $ 9.]

ence of the court, and the citation to show 4. SAME-MISCONDUCT AS OFFICER OF COURT.

cause, which was timely made, did not reAn attorney, who knowingly presents on quire an allidayit to support it. The second behalf of his client an affidavit containing aver and third affidavits were filed and presented ments attacking the integrity of the judge and containing defamatory matter, is guilty of con

to the judge in open court. In McCormick tempt.

v. Sheridan (Cal.) 20 Pac. 24, an attorney

had presented to this court a petition for a In Bank. Application for a writ of prohi

rehearing, whose language reflected upon an bition by Charles G. Lamberson against the

opinion written by one of the commissioners. superior court of the county of Tulare and

Some days thereafter, when the matter of another. On disagreement of the judges of

the petition had come under review, an orthe District Court of Appeal, the proceed

der was issued from this court, which order ings were certified to the Supreme Court.

was in fact a citation directed to the offending Writ discharged.

attorney, and commanding his presence to Alfred Daggett, for petitioner. W. B. Wal show cause why he should not be punished lace, in pro. per.

for contempt. A hearing was had, and this

court declared: “Upon the facts contained in HENSHAW, J. Petitioner was and is the the petition for rehearing, and quoted above, attorney at law of John Bashore, who is we adjudge the respondent Waterman guilty plaintiff in two actions pending before the su of contempt, committed in the face of the perior court of Tulare county. John Bash court.” In re Foote, 76 Cal. 543, 18 Pac. ore made application for a change of judges 678, declares merely that in contempt proin these actions, supporting his application ceedings, which contempt consisted of conby his own affidavits, verified before peti tumelious language addressed to the judge tioner as notary public, and by petitioner in the trial of a cause, an order adjudging filed with and presented to the court. Two an attorney in contempt made 50 days there of these affidavits were filed in connection after and in his absence, and without citation with separate applications for change of or notice to him of any kind, was improper,

« PreviousContinue »