Thomasson v. Guaranty Trust Co. of New York

• Decision Date: 18 November 1908
• Docket Number: 1,403.
• Citation: 159 F. 126
• Parties: THOMASSON et al. v. GUARANTY TRUST CO. OF NEW YORK et al.
• Court: U.S. Court of Appeals — Seventh Circuit

159 F. 126

THOMASSON et al. v. GUARANTY TRUST CO. OF NEW YORK et al.

No. 1,403.

United States Court of Appeals, Seventh Circuit.

November 18, 1908

Rehearing Denied January 15, 1908.

Charles H. Aldrich, for appellants.

Wm. J Calhoun and W. W. Gurley, for appellees.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

PER CURIAM.

The appellants were petitioners before the Circuit Court, for leave to intervene, as stockholders of West Chicago Street Railroad Company and on behalf of other stockholders thereof in the long-pending litigation entitled Guaranty Trust Company of New York v. West Chicago Street Railroad Company et al., 158 F. 913, 923, 1015, and this appeal is from an order which overrules their motion and denies the leave sought. Conceding the well-settled general rule that such applications are addressed to the discretion of the court and denial of leave to intervene is not such final order or decree as required by statute for review upon appeal, the appellants contend that the averments of their petition clearly state a case within the recognized exceptions from this rule. The propositions relied upon to authorize review are substantially these: (1) That the interests of the stockholders are unrepresented in the proceedings, although threatened with destruction or loss, and can only be defended and preserved through this intervention; (2) that the petition shows a fund in court, derived from net earnings wherein the stockholders have a direct interest, as creditors of the fund, and an absolute right to intervene. The correctness of either proposition must be tested by the facts averred and appearing of record, in the light of the presumptions which must be overborne to establish the case within the exceptions referred to.

1. Upon the first contention, the record discloses and the petition recognizes, not only the presence of the stockholders' corporation as a party defendant, and proceedings on its behalf by the directors and their counsel, but active proceedings on behalf of the stockholders and for their protection, through a so-called 'protective committee' appointed by the stockholders, under leave of the court for intervention. With such facts appearing, other individual stockholders cannot intervene, as of right under the well-settled rules of equity, without at least requesting action by such representatives, together with clear averments of fact which tend to impeach...