O'Bryan v. American Inv. & Imp. Co.

• Decision Date: 16 September 1908
• Citation: 97 P. 241,50 Wash. 371
• Court: Washington Supreme Court
• Parties: O'BRYAN v. AMERICAN INV. & IMP. CO. et al.

97 P. 241

50 Wash. 371

O'BRYAN v. AMERICAN INV. & IMP. CO. et al.

Supreme Court of Washington

September 16, 1908

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Clark O'Bryan against the American Investment &amp Improvement Company and others. From the judgment, plaintiff appeals. Reversed and remanded.

Geo. McKey and Alfred E. Hodgson, for appellant.

Hammond & Hammond, Blaine, Tucker & Hyland, and Walker & Munn, for respondents.

FULLERTON J.

The appellant, as a stockholder of the respondent corporation began this action on behalf of himself and all other stockholders similarly situated who might come into the action to set aside certain deeds to real property purported to have been executed by the corporation to the defendant D H. Lee, and from Lee to defendant Whalley, and for a reconveyance of the property to the corporation; also, to require an accounting from Lee and other officers of the corporation of the property of the corporation, and for the appointment of a receiver to take charge of the affairs of the corporation, and for general relief. D. H. Lee and the corporation made answer to the complaint containing both denials and new matter. To the new matter a reply was filed. Whether any others of the defendants made answer the record brought to this court does not show. Subsequently a hearing was had before the court and an order made which the clerk recorded in his minute book, under date of October 8, 1907, in the following language 'Defendant's motion to cancel and discharge lis pendens is denied. The court directs dismissal of the action as to defendant company without prejudice.' On October 23, 1907, the following order was filed and entered: 'The above-entitled action having come on duly and regularly for hearing and trial in open court this 5th day of September, 1907, the plaintiff appearing in person and by Messrs. Sachs & Hale, his attorneys, the defendant W. W. Whipple, appearing by Messrs. Holcomb & Kirkpatrick, his attorneys, and the defendants American Investment & Improvement Company and D. H. Lee, appearing in person and by their attorneys, Messrs. Hammond & Hammond and Messrs. Blaine, Tucker & Hyland, and the court having heard the evidence of the respective witnesses and the argument of counsel, said action having been finally submitted to the court and the court being fully advised in the premises: Now, therefore, it is considered, ordered, adjudged, and decreed that the above-entitled action be, and the same hereby is, dismissed and that the defendants, American Investment & Improvement Company, and D. H. Lee, are entitled to recover their costs of and from the plaintiff herein. Done in open court this 23d day of October, 1907. R. B. Albertson, Judge. To all of which plaintiff by his counsel, and the defendant W. M. Whipple, by his counsel excepted and said exceptions are hereby allowed. R. B. Albertson, Judge. O. K. as to form, Sachs & Hale.' On February 4, 1908, the appellant appeared by other counsel who had been theretofore formally substituted and petitioned for a modification of the judgment so...