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N. E. 92, where a similar order was consider

"We construe this decree to be in substance an order to the libelee to pay to libelant the sum named, to be used by her in the support of herself and the child, and that the libelant could enforce against the libelee whatever duty was placed upon him by the decree. The provision that it should be paid to the attorney of the libelant, rather than to her in person, was doubtless inserted for the convenience of the parties." This, it must be assumed, was the purpose with respect to the order in this case, and, while the respondent had full power to receive and receipt for the payments as they fell due, he had no control over the money and could not, without anything further appearing from the record, sue for and recover the arrears in his own name. The allegation that the suit was instituted for the benefit of another did not alter his relation to the judgment or order sued on, since such an allegation could not bind the real owner of the judgment, and she might sue upon it, if a suit could be maintained thereon, regardless of respondent's action, of course, if respondent had obtained judgment, and Mary L. Monroe had taken the money realized therefrom, such fact might be set up as a defense in another action brought by her on the same judgment. This would be so by way of an estoppel, however, and not upon the ground of former adjudication. In 23 Cyc. 1507, the rule with respect to parties to actions on judgments is stated thus: "An action on a judgment must be prosecuted by the real and beneficial owner of it, whose title to it must appear of record or by some formal transfer, and the suit cannot be maintained by a third person not answering these conditions, although the judgment may in some way define his rights or inure to his benefit or protection."

But respondent insists that the question was not properly raised by demurrer, since in the demurrer the alleged ground was a want of legal capacity to sue. It may be conceded that as a general rule the want of legal capacity to sue, referred to in section 2962, Rev. St. 1898, means a want of capacity to appear in a court and maintain an action, regardless of in whom is vested the right of action. In this state any person of sound mind, of lawful age, and under no restraint or legal disability, has the legal capacity to sue, although it may ultimately appear that he has no cause of action. Where, however, it appears from the face of the complaint, as in this case, that the right to maintain the action is not in the plaintiff, but in another, the complaint is defective for want o a statement of sufficient facts to maintain the action. It is elementary that a complaint good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff. In this respect the coniplaint in this case was defective, and

hence vulnerable by demurrer. That such a defect may be raised by demurrer is amply sustained by the authorities. 15 Enc. Pl. & Pr. 564, 713, where the cases are collected. In the absence of authority, however, and resting the proposition upon principle alone, why may not a defect of this kind be raised as a question of law, when the defect is made to appear from the face of the complaint? In such event it certainly presents no issue of fact, but purely one of law, to be determined from the allegations contained in the complaint, which are admitted by the demurrer. It follows, therefore, that the court erred in not sustaining the demurrer upon this ground.

This brings us to the second proposition, which seems to us to be one of grave importance with respect to actions based on decrees and judgments of a sister state. It is urged by appellant that the order or judgment for the accumulating alimony or maintenance sued for in this action is not a final judgment, order, or decree, and therefore is not the subject of an action, and does not fall within the protection of the full faith and credit clause of the federal Constitution. Upon the other hand, respondent strenuously contends that it is such a judgment, and entitled to full faith and credit in this state, to the same extent and with like effect as it would have in the state of Colorado, where it was rendered. Authorities are cited by both parties sustaining their respective contentions. We confess to having been compelled to modify our first impressions with regard to the finality of orders or judgments of the character like the one before us. Upon principle the order or judgment sued on, as pleaded, bears on its face the usual prerequisites of a final judgment, as such are defined to be in the books. Judgments are generally defined to be final, for the purpose of basing an action thereon, when the judgment is "a definitive and personal judgment for the payment of money, final in its character and not merely interlocutory, remaining unsatisfied, and capable of immediate enforcement." 23 Cyc. 1503. The judgment or decree sued on in this case certainly was final to the extent that either party could have prosecuted an appeal therefrom, and thus was not merely interlocutory. it was enforceable as against appellant by execution in the state where rendered, and, as admitted by the demurrer, was unsatisfied, and was for the payment of money only. As to the validity and effect of judgments or decrees granting divorce and alimony in the state of Colorado we are not advised. Upon the ques. tion of whether the courts of one state take judicial notice of the laws of another state upon this subject the authorities are in conflict, some holding that in actions on judg. ments of a sister state, a federal question

being involved, under the full faith and credit, of the United States are controlling, and to clause of the federal Constitution, the state some extent, at least, binding on this court. courts will take judicial notice of the laws In support of their contention they cite auof a sister state upon the subject respecting the

thorities of equal learning and respectabilvalidity and effect of judgments; while oth ity, as appears from the following cases: ers, and what appears to be the general view, Lynde v. Lynde, 41 App. Div. 280, 58 N. Y. hold that the laws of other states must be Supp. 507; Lynde v. Lynde, 162 N. Y. 405, proved as facts in this class as in all other 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. cases. 23 Cyc. 1547, 1548. Our Code (section Rep. 332; Lynde v. Lynde, 181 U. S. 183, 21 3374, Rev. St. 1898) defines matters of which Sup. Ct. 555, 45 L. Ed. 810; Page v. Page, the courts in this state take judicial notice,

189 Mass. 85, 75 N. E. 92. While the first and we think the matter respecting the laws

three cases are one and the same case, still of a sister state is not within the provisions baving been passed upon by three appellate of that section. But, be that as it may,

courts, considering the same facts, makes seems to us the safer rule is to require proof

the citations fully as strong, if not stronger, of the laws of a sister state in this regard,

as authority, as though there had been three as well as in all others. Assuming, therefore,

cases decided by the same courts falling withthe law with respect to divorce and allmony

in the same principle. When we come to in Colorado to be the same as our own, the

consider the comparative weight of the au

thorities cited by both sides, those cited by judgment was liable to modification by the

respondent are affected in their force or court rendering it upon application of either party at any time for good cause shown;

weight, while the ones cited by appellant are and such, under the decisions, seems to be

strengthened, by reason of the circumstan

ces surrounding them which we will now atthe effect of such judgments in the state of Colorado, as declared by the Supreme Court

tempt to point out.

To start with, the cases of Trowbridge v. of that state in the case of Stevens v. Stev

Spinning and Brisbane v. Dodson, supra, ens, 72 Pac. 1061, 31 Colo. 188. Whether the

hardly fall within the class of the case at law still remains so we are not advised.

bar. In Trowbridge v. Sninning the suit Respondent's counsel, however, contend

was for a fixed sum, payable as soon as the that, although the judgment required the

decree was entered, and hence comes within alimony to be paid in installments for future

the rule announced by the Supreme Court of support, still the amount was fixed and cer

the United States in the Lynde Case. In Bristain; that while the amount was subject to

bane v. Dodson the allegations of the comchange, or might be entirely withdrawn by plaint were to the effect that the judgment the court, nevertheless the judgment was

sued on was final, and not subject to change enforceable for the amount due and unpaid

or modification by the court rendering it. until modified by the court rendering it. It

This case, also, is not within the class to must be conceded that there is much force

which the case at bar belongs. Arrington v. in this contention, and that it is likewise

Arrington and Knapp v. Knapp were both supported by some courts of great learning decided before the Lynde Case was passed and of the highest respectability, as is evi

on by the Supreme Court of the United denced by the following cases: Barber v.

States, and hence the latter, being a case Barber, 21 How. (U. S.) 582, 16 L. Ed. 226; from an inferior federal court, is overruled, Arrington v. Arrington, 127 N. C. 190, 37 S.

by implication at least, by the Lynde Case, E. 212, 52 L. R. A. 201, 80 Am. St. Rep. 791;

while the former is by a divided court, and Wagner v. Wagner, 26 R. I. 27, 57 Atl. 1058, might not have been decided as it is if the 65 L. R. A. 816; Trowbridge v. Spinning, 23 court deciding it had been confronted with Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 the decision of the court of last resort on fedAm. St. Rep. 806; Knapp v. Knapp (D. C.) eral questions. This brings us to the only re59 Fed. 611; Brisbane v. Dodson, 50 Mo. App. maining case, to wit, that of Wagner v. Wag. 170. While there are other cases cited by ner, decided by the Supreme Court of Rhode counsel for respondent in support of their Island in 1904. This is the only case, de contention, and in which similar judgments cided after the Lynde Case was passed on were enforced, the foregoing cases are all by the Supreme Court of the United States, that discuss and directly pass upon the which holds to the doctrine that a judgment question presented by this appeal. Upon the like the one at bar may be sued on in a other hand, counsel for appellant contend sister state before the state court in which that, since the decree or judgment sued on it was rendered has fixed an absolute sum due was subject to change or modification at any and payable at some time prior to the bring. time by the court of Colorado, it therefore ing of the action thereon. While the case of was not a final judgment, and an action could Barber v. Barber, 21 How. (U. S.) 582, 16 not be maintained thereon; that, not being L. Ed. 226, was not directly mentioned by final, it did not fall within the full faith and the Supreme Court of the United States in credit clause of the federal Constitution and deciding the Lynde Case, yet it was thoroughwas not protected thereby, and that the ques ly considered and reviewed by both the New tion presented is a federal question, upon York courts, and distinguished from the wbicb the decisions of the Supreme Court | Lynde Case; and the Supreme Court, in ito

. BONANZA MIN.

.

opinion in the Lynde Case, sustained the New | now stands. The trial court, therefore, erred York courts, and it must be assumed that in overruling the demurrer. the Supreme Court of the United States con The judgment is reversed, with directions curred with the New York courts in dis to the district court to sustain the demurrer. tinguishing the Barber Case. This is of Appellant to recover (osts. great significance when we remember that all the cases cited by counsel for respondent MCCARTY, C. J., and STRAUP, J., concur. are based upon the Barber Case. If thus Barber v. Barber is moditied, as stated in the Lynde Case, there is little, if anything, left

(32 ['tah, 440) upon which to rely as an authority from the JONES V. BONANZA MIN. & MILL. CO. Supreme Court of the United States with re

et al. gard to the right to sustain actions on judg (Supreme Court of Utah. July 16, 1907.) ments such as here in question; and this is 1. CORPORATIONS-OFFICERS AND AGENTS-DE clearly the conclusion reached by the Su FACTO OFFICERS. preme Judicial Court of Massachusetts in the All irregularities in a corporate election,

the legality thereof, as well as the legal qualificase of Page v. Page, supra. The latter case

cations of the officers elected, are settled by the is the only one to which our attention has

election as against a collateral attack.* been called, and which we could find by in [Ed. Note.-For cases in point, see Cent. Dig. dependent research, that has passed upon vol. 12, Corporations, § 1245.] the precise question before us now. That 2. SAME - MEETINGS OF DIRECTORS STATU. case refers to and reviews the Lynde Cases,

TORY PROVISIONS.

A provision in articles of incorporation that and the court arrives at the conclusion that

a new board of directors shall organize within a the Supreme Court of the United States is time specified after their election is directory the final arbiter with respect to what judg merely. ments the full faith and credit clause of the 3. SAME-STOCK-ASSESSMENT-VALIDITY, Constitution applies, and its decision is bind

Articles of incorporation of a mining com

pany provided that no assessment should be ing on the state courts.

levied while there was treasury stock remaining The question, as we understand it, in view in the treasury. At the time of levy of an asof the decision in the Lynde Case, may be

sessment shares of such stock were undisposed stated thus: That an action upon a judg

of and in the treasury, but had no salable or

other substantial value. Held, that the fact ment or decree for alimony or maintenance, alone that such stock was undisposed of did not rendered by a court of competent jurisdiction render the assessment void.† of one state, may be maintained in another [Ed. Note.-For cases in point, see Cent. Dig. court of competent jurisdiction of another

vol. 12, Corporations, 8 654.) state, where the amount due or payable is

4. SAME-DE FACTO OFFICERS.

A director who, when elected, did not hold fixed, having a definite sum presently due

sufficient shares of stock to qualify him for that and enforceable in the state where rendered; office under the articles of incorporation, but but that alimony or maintenance becoming did hold the required amount at the time an asdue in the future, payable in installments,

sessment was levied on the stock of the corpora

tion by the board, was at least a de facto ofis not a fin:ll judgment upon which an action

ficer, and the assessment as against a collateral can be brought, unless and until the court attack was valid. which rendered it passes upon and fixes the [Ed. Note. For cases in point, see Cent. Dig. specific amount due and payable, in some

vol. 12, Corporations, $$ 1210-1242.] proper proceeding in the original action, or 5. SAME. by an independent action, if such can be

Stockholders, who not only had means of

knowledge respecting all the circumstances of maintained in the state where the original

an assessment on their stock, but about the time order or judgment was entered. The mere it was levied and before the sale of their stock fact, however, that a specific sum, present

to pay the assessment made an investigation of

the acts of the board of directors through a ly due, is also subject to modification, does

competent lawyer, and could thus have arrested not defeat the action in any other state; but

the consequences of the assessment had they dethe fact that a sum is not specifically fixed sired to do so, cannot thereafter complain of as due from one to the other of the parties

its invalidity.

6. APPEAL — REVIEW to the original suit, and certain sums are to

FINDINGS OF Fact

CONCLUSIVENESS. become due in the future and payable in in

Findings of fact by the trial court in an stallments or otherwise, does defeat the right equity case are conclusive, unless clearly conof action, unless the amount due is ascer trary to the evidence. tained and fixed by some appropriate pro

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $8 3970-3972.] ceeding before the action on the judgment or

7. CORPORATIONS-ACTIOXS-LACIIES. order or decree is commenced, as above stat

Stockholders of a mining corporation, who ed. In view, therefore, that the judgment or

apply to a court of equity for its interference decree in this case falls clearly within that to protect their rights against the consequences class which in the Lynde Case is held not to

*Hatch v. Lucky Bill Mining Company, 71 Pac. be a final judgment, and hence not within

865, 25 Utah, 405. the protection of the full faith and credit

#Gary v. York Mining Company, 35 Pac. 494, 9 clause of the federal Constitution, we have Utah, 464; Nelson v. Keith-O'Brien Company (Utah)

91 Pac. 30. no alternative than to hold that the action

Hatch v. Lucky Bill Mining Company, 71 Pac. cannot be maintained on the judgment as it 865, 25 Utah, 405.

91 P.-18

of alleged wrongful acts of the directors, must act with reasonable diligence, or present some good excuse for not having done so.

(Ed. Note.For cases in point, see Cent. Dig. vol. 12, Corporations, 1428.) 8. SAME-EVIDEXCE-SUFFICIENCY.

Evidence, in an action to enjoin defendants from acting as the officers and board of directors of a corporation and from holding a stockholders' meeting and from making a sale of the corporate property, held not to establish fraud in obtaining an option on the stock of plaintiff and his associates and a proxy therefor and in failing to enter into a bond and lease. 9. SAME.

Evidence, in an action to enjoin defendants from acting as the officers and board of directors of a corporation and from holding a stockholders' meeting and from making a sale of the corporate property, held not to show reasonable diligence by plaintiff to correct the wrongful acts charged.

Appeal from District Court, Fifth District; Joshua Greenwood, Judge.

Action by George Jones against the Bonanza Mining & Milling Company and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss the action.

W. A. Lee, for appellants. Hendersen, Pierce, Critchlow & Barrette and B. N. C. Stott, for respondent.

FRICK, J. This action was commenced by plaintiff, hereinafter designated respondent, against the defendants, who are appellants in this court, to enjoin them from acting as the officers and board of directors of the Bonanza Mining & Milling Company, a Utah mining corporation, and to enjoin them from holding a certain stockholders' meeting, and from entering into negotiations for and from making a sale of the property of said company, and for general relief. A restraining order was duly issued pending the hearing on the merits, and upon final hearing the individual defendant E. G. Jones, and four others who were not made parties to the action, were removed as officers and director's of said company, and others reinstated into such offices, and the appellant E. G. Jones and the four other members of the board of directors were enjoined from holding any stockholders' or directors' meeting. They were enjoined from offering for sale or selling the property of said corporation, and from transacting any of its business; and all acts of the board of directors of said corjoration from and after March 9, 1903, including the acts on said date, were held illegal and void. The court further decreed that the plaintiff and his associates still Were the owners of and entitled to the stock which was sold on the assessment hereinafter referred to. From the findings and the decree as made by the court, appellants prosecute this appeal.

Appellants' attorney has assigned over 80 errors, but has massed them into 8 groups, and nearly all of them in some way relate to errors of the court in granting the injunc

tion and other relief mentioned above. We shall not attempt to discuss the assignments separately, nor even do so in groups. The case may be determined upon the question as to whether under the whole evidence the respondent is entitled to the relief prayed for, or to any relief in this action. The complaint, findings of fact, conclusions of law, and decree cover 83 pages of the printed abstract, and the bill of exceptions containing the transcript of the evidence is composed of 663 pages of typewritten matter. In view of this it is utterly impossible within the limits of this opinion to attempt even a summarized statement of the pleadings and findings, nor of the evidence adduced at the trial. We will refer to such parts in the opinion as may be deemed necessary to a clear understanding with regard to the conclusions reached.

The principal matters relied on in the complaint consist of three separate agreements, all dated at Robinson, Utah, February 16, 1903, namely: (1) An agreement signed by one Ed. Mingle whereby he agreed to enter into a bond and lease with the Bonanza Mining & Milling Company "upon certain mining property in Juab county, Utali, upon terms and conditions this day agreed upon and to be agreed upon on or before April 1, 1903, or in the event of my failure so to do to forfeit and return that certain power of attorney and option to purchase this day given me by D, A. Depue, George Jones, Raymond Jones, A. J. Underwood, and the Tintic Lumher Company"; (2) an agreement by the parties last above named as stockholders of the Bonanza Mining & Milling Company to said Ed. Jingle giving him an option on 176,604 shares of the capital stock of said company at the rate of five cents per share to remain in force unconditionally until April 1, 1901; and (3) a power of attorney or proxy by the five parties above named to said Ed. Mingle whereby he was given the right to vote said shares of stock in the same manner and to the same extent as the parties could do if present at any meeting, and "reserving only from this power the right to sell or incumber said shares of stock, it being understood that the powers and authority hereby delegated shall for a period of one year from April 1, 1903, next be irrevocable and shall run jointly with that certain option or options to purchase the shares of stock now owned by us this day given to said Mingle.” The two last agreements were signed by the five parties named, and the first one was signed by Ed. Mingle alone. It is also alleged in an amended complaint that the bond and lease mentioned in the first of the three agreements above mentioned were entered into, and the court so finds in findings 13 and 14; but there is no evidence to sustain these allegations or findings and respondent's attorney at the trial, as the bill of exceptions discloses, disclaimed such to have been the fact. Не. therefore, rests his claim for relief upon the

fact that Mingle should have entered into were mailed to the stockholders. The resuch a bonil and lease, but that he fraudu spondent and his associates received this nolently failed to do so.

tice, and protested against the assessment After the three agreements had been en upon the ground that they had no stock extered into a stockholders' meeting of the cept that on which they hall given in option Bonanza Mining & Jilling Company was to vingle and that he should either do the duly called to be held at its office at Robin assessment work under his bond and lease or son, Juab county, at which, according to the else take care of the assessment upon their notice therefor, a new board of directors was stock. The officers of the company, however, to be electe] for said company; authority to disclaimed any knowledge of such an option bond and lease the property to be obtained or of any agreement to that effect, and insistfrom the stockholders and to "ratify the ac ed on the assessment being paid with the tion of the board of directors taken at said view of obtaining money to keep the mining meeting." This meeting was duly held at claims of the company in good standing. the time and place designated in the notice Respondent and his associates, as they adand one Wardlaw, holding the proxy given mit, consulted a lawyer at the time with reto Mingle with the consent and direction of spect to the regularity of the assessment; respondent, who was secretary of the Bonan and the officers, as respondent admits, offerza Company, and D. A. Depue, its president, ed back at that time to him and his associelected a new board of directors. We re ates all the books, records, and matters permark here that at the annual stockholders' taining to the affairs of the company if they meeting of said company, held in the month would take charge of the corporate affairs of January. 1903, as appears from the re

and pay

pay the debts necessarily incurred, corded proceeilings of that meeting, the old which appeared of small consequence. But officers were continued in office until the respondent refused to do this. The sale of stockholders should elect others.

elect others. At the the delinquent stock was postponed pending stockholders' meeting held on March 9, 1903, the controversy, but, no understanding harJingle was not present, nor was the apiel ing been arrived at the sale took place Octolant C. W. Jones. When this meeting ad ber 3, 1903. At this sale 229,481 out of about journed, the newly elected directors, as is 293,000 shares then issued were offered for claimed by respondent, were to meet on the sale as delinquent. Out of this number the same day at Salt Lake city to organize, officers of the company bid in for its benefit, while the appellants claim such meeting was for want of bidders, 168,936 shares. J. G. to be held on May 9th following. In this Campbell, the then president, bought 33,720 connection the record of that meeting show's shares, and N. B. Campbell, the then secrethat "March" was changed by substituting tary, bought 23,808 shares, and J. A. Lloyd, "May" therefor. How or when such change a director, bought 3,000 shares. From this was made, or who made it, the evidence fails it appears that the assessment of one-fourth to make clear. The fact. however, is that of one cent per share was paid on about 66,the new board did not meet until May, 1903, 000 shares out of the whole capital stock of at which time two of the newly elected mem 300,000 shares, for which the corporation bers, who were not consulted when elected, was incorporated. The whole amount thus could not serve, and the board was filled realized from this assessment, from the asby the others who qualified by taking the sessments paid and stock sold as above set usual director's oath of office as provided by forth, amounted to about $300, or only suffilaw and thereafter filed the same with the cient to keep three out of the seven mining county clerk of Juab county. Afterwards, on claims owned by the company in good standJune 6, 1903, another director was appointed ing if there were no other expenses. in place of one who resigned on that day, It further appeared that the officers, before and the one appointed duly qualified on June the assessment was levied, made frequent 9th by taking the oath of office and duly filed attempts to dispose of treasury stock to raise the same on June 22d. This board from and money to defray the necessary expenses of after May 11, 1903, conducted all the corpo the corporation, and that they had disposed rate business of the Bonanza Company dur of treasury stock, realizing about two cents ing the year 1903, and in January, 1904, at per share therefor, but could not find sale the annual stockholders' meeting duly called for any more, so that at the time the assessand held at the office of the company at Rob ment was levied there were about 5,000 shares inson, Juab county, Utah, a new board of of the treasury stock undisposed of; but it directors was elected, who duly qualified, is not seriously contended by any one that and the saroe proceeding was had in Jan those shares had any market or other subuary, 1905. On July 10, 1903, the board of stantial value at that time, or that they were directors, composed of the members elected saleable. It further appeared that at least and appointed as a bove stated, levied an as two assessments had been levied on the stock sessment of one-fourth of one cent per share prior to the assessment of July, 1903, and upon the whole of the outstanding capital that when these assessments were levied stock of the Bonanza Company. The notice there was a large amount of stock in the of this assessment was regularly published treasury and unsaleable, and that respondent in a newspaper, and copies of the notice / and bis associates assented to these first two

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