Alhambra Consol. Mines, Inc. v. Alhambra Shumway Mines, Inc.

• Court: California Court of Appeals
• Writing for the Court: GOOD
• Citation: Alhambra Consol. Mines, Inc. v. Alhambra Shumway Mines, Inc., 49 Cal.Rptr. 38, 239 Cal.App.2d 590 (Cal. App. 1966)
• Decision Date: 25 January 1966
• Parties: ALHAMBRA CONSOLIDATED MINES, INC., formerly known as Alhambra Gold Mine Corporation, a corporation, and G. G. Davis, as Assignee of Judgment Plaintiffs and Appellants, v. ALHAMBRA SHUMWAY MINES, INC., a corporation, Golden Gem Mining Corporation, a corporation, Metlab, Inc., a corporation, J. P. Champagne, W. J. Howard, T. W. Fleming, Art Neilson, Joseph H. Benedict, Ralph R. Howard, E. P. Lawless, J. R. Wallace and B. F. Parsons, Defendants and Respondents. Civ. 11120.

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49 Cal.Rptr. 38 239 Cal.App.2d 590 ALHAMBRA CONSOLIDATED MINES, INC., formerly known as Alhambra Gold Mine Corporation, a corporation, and G. G. Davis, as Assignee of Judgment Plaintiffs and Appellants,
v.
ALHAMBRA SHUMWAY MINES, INC., a corporation, Golden Gem Mining Corporation, a corporation, Metlab, Inc., a corporation, J. P. Champagne, W. J. Howard, T. W. Fleming, Art Neilson, Joseph H. Benedict, Ralph R. Howard, E. P. Lawless, J. R. Wallace and B. F. Parsons, Defendants and Respondents. Civ. 11120. District Court of Appeal, Third District, California. Jan. 25, 1966.
As Modified Feb. 2, 1966.

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[239 Cal.App.2d 592] Erwin P. Werner, Needles, for plaintiff-appellant Alhambra Consolidated Mines, Inc.

S. E. Gramer, Beverly Hills, for plaintiff-appellant Davis.

Robert E. Shields, Auburn, for respondent.

GOOD, Justice pro tem.

Plaintiff above named, herein called 'Consolidated,' appeals from an order granting a new trial in an action for conspiracy to slander title to a mining leasehold, trespass and dispossession by defendants (all being stated in a first cause of action) and for malicious prosecution (stated in a second cause of action) wherein judgment was entered upon a jury verdict for $83,000 damages against Alhambra Shumway Mines, Inc., its directors and a stockholder as well as other defendants who have since been dismissed. Because all of the issues on appeal relate equally to all defendants, 'Shumway' herein, for convenience, will include both corporate and individual respondents. Shumway's motion for a new trial was grounded upon excessive damages, insufficiency of the evidence and error of law. The trial court granted it upon all of the grounds set forth 'including specifically the ground of the insufficiency of the evidence to sustain the verdict.' Consolidated assigned the judgment to appellant G. G. Davis before the motion for new trial was heard. Davis appeals separately from said order upon the sole ground of the timeliness of the notice of intent to move for a new trial. Consolidated's appeal is predicated upon a claimed abuse of discretion in granting said motion and urges that res adjudicata deprives Shumway of all defenses herein. These issues will be separately discussed below as will the issues raised by Shumway's cross-appeal from the judgment.

The appeals are the latest stage in a series of three lawsuits between Shumway, owner of the gold mining property, and Consolidated, its lessee. By a lease executed

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in 1947 and amended in 1948, Shumway leased the mine for 20 years to Consolidated. In February 1951 Shumway filed an action to rescind the lease on the ground that it was an invalid disposition[239 Cal.App.2d 593] of substantially all corporate assets without the formal approval by vote or written consent of a majority of voting shareholders required by Corporations Code, section 3901. The case bore the El Dorado clerk's file number 7021 and will sometimes be referred to by that number herein. Various aspects thereof were the subject of decisions by this court in 1953, 1957 and, finally, in February 1962. An order appointing a receiver was reversed in the case reported in 116 Cal.App.2d 869, 254 P.2d 599 because an injunction would have provided adequate remedy to protect Shumway's rights therein. The case was tried in 1955 and a judgment in favor of Consolidated was reversed because Consolidated had not paid its corporate franchise tax since 1950. This decision is reported in 155 Cal.App.2d 46, 317 P.2d 649. The case was retried in 1960 and judgment in favor of Consolidated was affirmed by this court upon the ground of laches on the part of Shumway's officers and shareholders. Again, the decision is reported in 200 Cal.App.2d 322, 19 Cal.Rptr. 208. The parties were embattled in case 7021 from February 1951 until February 1962, a period of 11 years.

The record shows that in 1949 a purportedly rich discovery was made by Consolidated and widely publicized but that further development by way of any mining operations was suspended immediately thereafter; and, at the time of an apparently unopposed resumption of possession by Consolidated in 1956, that Consolidated had not paid either the taxes or an annual rental of $100 as required by the lease since 1950. In 1956, Consolidated's president reentered the mine and commenced negotiations for a new lease. A stockholder, Rego, expended some $70,000 rehabilitating the mine, during the course of said negotiations. Rego left in 1957 when Consolidated's president (not Shumway) informed Rego that they could not operate the mine because they could not negotiate the new lease. The testimony concerning these negotiations is not entirely clear as to who instituted them nor why a new lease was considered necessary. Consolidated's president remained in possession for three or four months after Rego's departure and then left voluntarily. The property was unoccupied for several years thereafter. No order or other demand for possession appears to have been made by Shumway until in 1959 it served a notice of forfeiture on Consolidated. Ten...