Bellamy v. Washita Valley Tel. Co.

• Citation: 25 Okla. 792,1910 OK 58,108 P. 389
• Decision Date: 08 March 1910
• Docket Number: Case Number: 225
• Parties: BELLAMY v. WASHITA VALLEY TELEPHONE CO. et al.
• Court: Supreme Court of Oklahoma

1910 OK 58

108 P. 389

25 Okla. 792

BELLAMY v. WASHITA VALLEY TELEPHONE CO. et al.

Case Number: 225

Supreme Court of Oklahoma

Decided: March 8, 1910

Syllabus

¶0 1. APPEAL AND ERROR--Time for Taking Proceedings. Where a petition in error is filed asking a review of a judgment upon the merits discharging the receiver, directing a return of the property to defendants and taxing plaintiff in error with the costs, and an order overruling his motion for a new trial, and an order modifying the first order, and an order requiring the clerk of the court to turn over certain moneys in his hands to J. C. H. "as acting president of" the defendant company, and it appears that more than one year has elapsed from the entry of all but the last order before the filing of the petition in error, this court is without jurisdiction to review said judgment and all but said last order.

2. APPEAL AND ERROR--Time for Taking Proceedings--Extension. The time for instituting a proceeding in error in this court to review a judgment of the district court declining to pass upon a question raised in the petition, and upon which judgment the bar of the statute has fallen, is not extended by a subsequent order declining to pass upon the same question raised by a subsequent petition based upon the same grounds.

3. JUDGMENT--Res Judicata. An adjudication upon the merits of a petition which declines to pass upon a question raised is a bar to another petition based upon the same ground raising the same question.

4. RECEIVERS--Vacation of Receivership--Determination of Right to Funds. A corporation being in the hands of a receiver, the sum of $ 1,140 going into his hands in such capacity, and being paid by proper order of court into its registry. the receivership being vacated and the court ordering all funds to be paid or turned over to said corporation, H. demanding said fund from the clerk of the court as acting president and B. claiming to be a stockholder and president of said corporation, and entitled in said capacity to receive said fund, filed his motion in court asking that the clerk be ordered to pay said sum to him, the court without hearing any evidence on said motion, ordered said fund to be paid to H. as acting president. Held, that the court should have heard evidence on such motion and found who the proper officer under the by-laws of said corporation was to receive said fund, and then ordered the clerk to pay same to such officer.

Error from District Court, Canadian County; George W. Clark, Judge.

Action by George W. Bellamy against the Washita Valley Telephone Company and others. Judgment for defendants and plaintiff brings error. Reversed and remanded, with instructions.

E. E. Blake and Don C. Smith, for plaintiff in error.

Dale, Bierer & Hegler, for defendants in error.

TURNER, J.

¶1 On February 27, 1905, George W. Bellamy, plaintiff in error, plaintiff below, sued the Washita Valley Telephone Company, J. C. Harrell, C. I. Petty, E. A. Harrell, F. H. Wright, G. H. Rowley, H. L. Rowley, and R. D. Reynolds, defendants in error, defendants below, in the district court of Canadian county and in his petition states, substantially, that he is a stockholder in the defendant company, and the capital stock thereof to be $ 50,000, divided into 2,000 shares of $ 25 each, of which plaintiff owned 48 shares and the defendant F. H. Wright 47; that the remainder thereof was pretended to be owned by the defendants J. C. Harrel, C. I. Petty, and E. A. Harrel, in amounts unknown to plaintiff; that on its organization plaintiff was elected president and another stockholder secretary; that thereafter said three defendants pretendedly purchased certain stock of said corporation then owned by defendants G. H. Rowley and H. L. Rowley, but the same was never transferred to them or from the sellers thereof on the books of said company, nor certificates of stock lawfully issued to them nor certificates for the same ever executed to them by plaintiff as president of said company, that if said stock was ever purchased as pretended it was done in violation of an agreement entered into between G. H. Rowley and H. L. Rowley as parties of the first part, and plaintiff and said Wright parties of the second part in writing, to the effect that neither party would at any time acquire more than one-half of the joint holdings of the said four persons, and that in the event either of said parties desired to sell their stock the other party had the preference right to either buy or sell at the named price and that said three defendants took said stock with full knowledge of the rights of plaintiff therein; that by virtue of said assumed ownership of stock said three defendants were assuming to be stockholders in the said corporation, and notwithstanding the fact that no meeting of stockholders or directors had been held since the election of plaintiff as president thereof, said three defendants had assumed and pretended to be and act as officers of said corporation without authority of law, and had taken possession of the property thereof and assumed control and management of said corporation, and were dissipating its earnings and profits in the way of expenses and salaries to themselves, and prays for a receiver of its properties, and for judgment against each of the defendants, except F. H. Wright, determining and adjusting their interests in the stock of said company and that its affairs be wound up and said corporation dissolved.

¶2 On the same day notice was served on defendant F. H.Wright, as vice president of said company, and, after answer filed, pursuant thereto on March 4, 1905, the judge of said court at the time mentioned in said notice heard the application of said plaintiff and appointed a receiver according to the prayer of his petition, who qualified and took possession of the property of the company and entered upon the discharge of his duties as such receiver.

¶3 For answer, said three defendants, after interposing a general denial, denied specifically that plaintiff was president of said corporation or owned any stock therein, but alleged that he had parted with the same to the...