Brown v. Mesnard Min. Co.

• Decision Date: 02 July 1895
• Citation: 63 N.W. 1000,105 Mich. 653
• Court: Michigan Supreme Court
• Parties: BROWN ET AL. v. MESNARD MIN. CO. ET AL. SAME v. PONTIAC MIN. CO. ET AL. SAME v. HOUGHTON CIRCUIT JUDGE (TWO CASES).

63 N.W. 1000

105 Mich. 653

BROWN ET AL. v. MESNARD MIN. CO. ET AL.

SAME v. PONTIAC MIN. CO. ET AL.

SAME v. HOUGHTON CIRCUIT JUDGE (TWO CASES).

Supreme Court of Michigan

July 2, 1895

Appeal from circuit court, Houghton county, in chancery; Jay A Hubbell, Judge.

Separate bills in equity by Albert L. Brown and another against the Mesnard Mining Company and others, and against the Pontiac Mining Company and others, to wind up the affairs of defendant corporations. The bills were dismissed, and complainants appeal, and also apply for mandamus to vacate the orders of dismissal and proceed with the causes. Writs granted.

Chadbourne & Rees, for appellants and relators.

A. R Gray (Thomas H. Talbot, of counsel), for appellees and respondent.

McGRATH C.J.

Bills were filed in the first two cases September 27, 1893, under chapter 124a, 3 How. Ann. St. p. 3397, to wind up the affairs and distribute the assets of the defendant corporations. The bills were verified by affidavits dated July 22, 1893. Defendants Watson and Ashley entered their appearance in February, 1894, and afterwards demurred in each case, setting forth: (1) That the said bill is not verified as required by law. (2) That the proceedings taken in said cause and the relief prayed for in said bill are not warranted or authorized by law. (3) That the complainants have not, in and by their said bill, made or stated such a case as entitled them, in a court of equity, to the relief therein prayed for. (4) That it appears by the said bill that there are divers other persons who are necessary parties to the said bill, but who are not made parties thereto. The circuit judge held that, inasmuch as the affidavits were made long before the filing of the bill, it did not affirmatively appear that complainants were stockholders when the bill was filed; that the defect was jurisdictional; and dismissed the bills. Complainants have appealed in both cases, and having some doubt as to whether an appeal lies, under Cady v Manufacturing Co., 48 Mich. 133, 11 N.W. 839, have also obtained in each case an order to show cause why a mandamus should not issue compelling the circuit judge to vacate the orders dismissing the bill, and proceed with the causes.

The chapter under which the proceedings are brought has been since amended, expressly providing for an appeal, hence it is unnecessary to discuss the question as to the proper mode of bringing the cases here. If it be urged that an appeal did not lie, then the rule laid down in People v. Swift, 59 Mich. 529, 26 N.W. 694, viz. that where an inferior court has refused to entertain jurisdiction on a matter preliminary to a hearing on the merits mandamus is an appropriate remedy, is applicable. This is not an application to review an order made in the course of a proceeding, but rather for an order compelling the court to act. See Brown v. Circuit Judge, 75 Mich. 274, 42 N.W. 827. The statute (3 How. Ann. St. � 4161d9) provides that to such bill shall also be annexed an affidavit of the complainant that the facts stated in the bill are true. It is not claimed that the averments in the bill are not ample.

We are cited in support of the judgment to the holdings in the attachment cases, and to Bryan v. Smith, 10 Mich. 229; Ayers v. Gartner, 90 Mich. 380, 51 N.W. 461, and Union v. Atwell, 95 Mich. 239, 54 N.W. 760. Attachment proceedings and summary proceedings to recover possession of lands are special and purely statutory. In Bryan v. Smith the complaint did not contain the essential averment that at the time of the commencement of the proceedings complainant was entitled to the possession of the premises. In Ayers v. Gartner it is true that it was said that the statutory requirement was mandatory, but express reference was made to the fact that a motion to dismiss had been made, an opportunity had been given to apply for leave to amend, and no request therefor had been had. In Harrison v. Harrison, 94 Mich. 559, 54 N.W. 275, however, it was held, that the affidavit might be amended, and the case was remanded for that purpose. See, also, Holcomb v. Holcomb, 100 Mich. 421, 59 N.W. 170. How. Ann. St. � 6824, provides that in all cases nonresident plaintiffs in justice courts shall give security for costs before process shall issue. Section 7296 provides that all original writs in which plaintiff is a nonresident shall, before service, be indorsed by a resident, who shall be liable for costs. As early as the case of Parks v. Goodwin, 1 Doug. (Mich.) 56, it was held that a writ of summons returnable before a justice would not be set aside because of the omission of plaintiff, a nonresident, to give security for costs, provided that such security be given before a motion to set aside the writ is granted.

The court in the present case is not one of special or limited jurisdiction. The bill of complaint averred that complainants were stockholders. That averment did not conclude the court or defendants, but was open to inquiry in the course of the proceeding, and was a fact to be proven at the hearing. Nor do we think that the proceeding is a purely statutory one, in the sense that a suit in attachment or a summary proceeding to recover the possession of land is.

The question of the power of a court of equity to dissolve a corporation is not involved. The bill is filed to distribute the assets of a corporation chartered to exist during a limited...