Angel v. Mellen

• Decision Date: 13 February 1930
• Docket Number: 5332
• Citation: 48 Idaho 750,285 P. 461
• Parties: R. M. ANGEL, Respondent, v. THOMAS H. MELLEN, GUY R. YOUNG and RUPERT WINTERS, Directors of the CRYSTAL GOLD PLACER MINING COMPANY, and the CRYSTAL GOLD PLACER MINING COMPANY, a Corporation, Defendants; THOMAS H. MELLEN, Appellant
• Court: Idaho Supreme Court

285 P. 461

48 Idaho 750

R. M. ANGEL, Respondent, v. THOMAS H. MELLEN, GUY R. YOUNG and RUPERT WINTERS, Directors of the CRYSTAL GOLD PLACER MINING COMPANY, and the CRYSTAL GOLD PLACER MINING COMPANY, a Corporation, Defendants; THOMAS H. MELLEN, Appellant

No. 5332

Supreme Court of Idaho

February 13, 1930

JUDGMENT-LIMITATION TO RELIEF SOUGHT BY PLEADING-DEFAULT-VACATION OF VOID PARTS OF JUDGMENT.

1. Judgment must be responsive, not only to prayer, but to issues tendered by pleadings.

2. Where no answer is filed, court is limited to relief demanded in complaint under C. S., sec. 6829.

3. Judgment, particularly in default cases, must be supported by allegations which fairly tend to apprise defendant of claims made against him and relief sought by plaintiff.

4. In action by stockholder in behalf of himself and other stockholders against M. and two directors of corporation under complaint alleging that M. sold stock of corporation and failed to account for proceeds and received other money belonging to corporation which he appropriated to his own use and that he took stock books and seal out of county, and praying that board of directors be required to require him to account for money and to pay back money illegally diverted personal judgment against M. for certain amount exceeded relief prayed for and was beyond court's jurisdiction.

5. Void parts of judgment which exceed the relief prayed for may be vacated if separable from balance.

6. Where no answer is filed, plaintiff cannot recover beyond allegations of his complaint under prayer for general relief under C. S., sec. 6829.

7. In action by stockholder on behalf of himself and other stockholders against M. and two other directors of corporation, constituting majority of board, alleging that M sold stock of corporation and failed to account for proceeds and received other money belonging to corporation which he appropriated to his own use, and praying that directors be required to require him to account for money coming into his hands and to require him to pay back money illegally diverted, prior judgment directing board of directors to recover from M. certain sum held responsive to allegations and prayer of complaint.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. H. F. Ensign, Judge.

Motion to strike parts of default judgment. Order denying motion reversed.

Cause remanded, with instructions. Costs awarded to appellant.

J. B Eldridge, for Appellant.

The supreme court of the state of Idaho in the following cases has held point blank that the court is without jurisdiction to render a judgment different than the demand of the complaint in default cases: Lowe v. Turner, 1 Idaho 107; Wilson v. Boise City, 7 Idaho 69, 60 P. 84; Washington County Land & Development Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 P. 616.

"The prayer thereof is for perpetual injunction, 'and for such other and further relief as may be equitable.' That prayer for general relief, without an answer being filed, would not warrant a judgment or decree removing any cloud that said sale might have cast upon the title to said lots, for that relief is not demanded in the complaint."

It will be seen from the foregoing that the prayer for general relief cannot be looked to for assistance. (Wilson v. Boise City, 7 Idaho 69, 60 P. 84.)

The reason that the judgment is void is because the statute of the state prohibits the granting of a judgment in excess of the demands, for the reason that one may be entirely willing for a judgment to be taken against him according to the demands and for that reason not appear and permit default; whereas if a different judgment such as was rendered as in this case in excess of the demands the case would be fought bitterly. (Washington County Land & Development Co. v. Weiser Nat. Bank, supra; Wilson v. Boise City, supra; Lowe v. Turner, supra.)

This is a direct attack on the judgment for the sole and only purpose of setting it aside, though being void it could be collaterally attacked.

Frank Croner and R. M. Angel, for Respondent.

Respondent contends that under a prayer for general relief the court can in cases of this kind, even upon default, grant any relief within the scope of the pleadings. (31 Cyc. 111; Johnson v. Polhemus, 99 Cal. 240, 33 P. 908; Clark v. Palmer, 90 Cal. 504, 27 P. 375; 1 Sutherland on Code Pleading and Practice, sec. 3; Rollins v. Forbes, 10 Cal. 299; 33 C. J. 1144--1188.)

It is contended that this judgment is wholly void in certain parts of counsel's brief. His motion appealed from does not so contend, and, if anything, this judgment could only be considered erroneous from appellant's standpoint. (Brunzell v. Stevenson, 30 Idaho 202, 164 P. 89; 33 C. J. 1147--1189.)

And the remedy in an erroneous judgment is motion to set it aside within six months or appeal. (33 C. J. 1147--1189; McAllister v. Erickson, 45 Idaho 211, 261 P. 242; Murdock v. DeVries, 37 Cal. 527.)

KOELSCH, District Judge. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

KOELSCH, District Judge.

On the eighth day of February, 1926, the respondent, R. M. Angel, filed his complaint in the district court of the fourth judicial district of the state of Idaho, in and for the county of Camas, alleging that he is a stockholder of the Crystal Gold Placer Mining Company, a corporation, named as one of the defendants, and that he brought the action for himself and all other stockholders of said corporation, similarly situated. He further alleges that the defendants, Thomas H. Mellen, Guy R. Young and Rupert Winters, are members of the board of directors of said corporation and constitute a majority of the said board, and that the said Thomas H. Mellen, at the times mentioned, was, and still is, the secretary-treasurer of the company. The complaint then alleges "that the defendants Thomas H. Mellen and Guy R. Young, with the consent and connivance of the defendant Rupert Winters, have been guilty of gross mismanagement of the affairs of the said company, and that the said Thomas H. Mellen, with the consent, knowledge and connivance of the other defendants herein, has misappropriated and diverted the funds of the defendant corporation, to the great and irreparable injury of the said corporation and its stockholders, and threatened to continue so to do unless restrained by order of this court."

The complaint then proceeds in seven paragraphs to particularize the "acts of mismanagement and misappropriation of funds as above set out," which paragraphs may be briefly summarized as follows:

That said Mellen failed to furnish, and said defendants failed and refused to require Mellen to furnish, a bond as secretary-treasurer, as required by the by-laws of the corporation; that the board authorized said Mellen to sell the treasury stock of the corporation for no less than ten cents per share, and (upon information and belief alleges) that he did sell, upward of 7,000 shares of such treasury stock, but that he failed to account for the proceeds, and that the other directors failed and refused to require him to so account; that the charter and by-laws of the corporation require that the books be kept in Camas county, Idaho, but that said Mellen, as secretary-treasurer, has taken the same without said county, and refuses to allow other stockholders to examine the same; that in October, 1925, at a meeting called and held without notice to the other stockholders, the board elected two new directors when there was no vacancy; that said new board delegated its powers to Mellen and made him general manager of the corporation; and that said Mellen has collected all of its moneys; and particularly that the defendant Guy R. Young, and one D. R. McKenzie, had large sums of money belonging to said corporation, which they sent to said Mellen, who appropriated the same to his own use and generally mismanaged the affairs of said company; all with the knowledge and consent and, in some instances, the active connivance of the other defendants herein.

And the complaint closes with this prayer: "Wherefore plaintiff prays judgment that the said directors, defendants, of said corporation, and the said corporation be required by mandate to require the said Thomas H. Mellen to account for any and all moneys that may have come into his hands; that they require him to account for the moneys paid to him during the months of November and December, 1925, and January, 1926, when the mine was closed down, and require him to pay back any and all moneys illegally diverted by him; that they be restrained from paying such illegal salaries; that they require him to keep the corporate books at Fairfield, Idaho, the principal place of business of said corporation, open to inspection at any time during business hours to any stockholder; that they be restrained from committing any of the acts herein complained of, and for such other and further relief as to the court shall seem meet."

All of the defendants having been regularly served with summons, but having defaulted, the court, on the twenty-ninth day of May, 1926, entered the following default judgment, to wit:

"Wherefore by reason of the findings of facts hereinbefore made and filed in the above-entitled action, it is ordered, adjudged and decreed, that the defendant, Thomas H Mellen, pay to the Crystal Gold Placer Mining Company the sum of $ 1702.76. That the said Thomas Mellen be, and is hereby directed to return all books, records and other property belonging to the said Crystal Gold Placer Mining Company to its office in Fairfield, Camas County, Idaho, and that the officers of the board of directors of said Crystal Gold Placer Mining Company be, and are hereby enjoined from paying any money...