Campbell v. Milliken

• Decision Date: 14 November 1904
• Citation: 78 P. 620,20 Colo.App. 299
• Parties: CAMPBELL et al. v. MILLIKEN et al.
• Court: Colorado Court of Appeals

78 P. 620

20 Colo.App. 299

CAMPBELL et al. v. MILLIKEN et al.

Court of Appeals of Colorado

November 14, 1904

Appeal from District Court, El Paso County.

Petition by Frank J. Campbell and others for an injunction and other relief against John T. Milliken, as president and director of the Golden Cycle Mining Company, a corporation, and others. From an order denying the relief sought, plaintiffs appeal. Affirmed.

Henry McGarry, Waldron & Thompson, and Dines Whitted & Dines, for petitioners.

Branch H. Giles, K.C. Schuyler, and Charles F. Potter, for respondents.

GUNTER J.

A petition has been filed in this court in the above cause here on appeal, by the appellees therein, to enjoin the plaintiffs in an action pending in the circuit court of Kanawha county, W.Va., from proceeding further therewith because, as it is said, such West Virginia action is an attempt to retry the same cause of action as is before this court for decision by said appeal, and is therefore an interference with the previously assumed jurisdiction of this court. One question is decisive. If a final decree in the Colorado case would not be res adjudicata of the matter directly in issue in the West Virginia action the petition should be denied. The burden is upon the petitioners to show that a final decree in the Colorado suit would be res adjudicata of the matter proceeded on or in issue in the West Virginia cause. Res Adjudicata and Stare Decisis (Wells) p. 286, § 215. This question is determined by an examination of the complaints in the two actions. The Colorado complaint was filed November 18, 1902, and, while enlarged by amendment to embrace certain matters happening between that date and April 25, 1903, it is not material to the purpose of this ruling to discuss the matters brought in by the amendment, we confine ourselves to those alleged in the original complaint. This complaint, wherein certain shareholders of the Golden Cycle Mining Company for themselves and other shareholders similarly situated are plaintiffs, and said company and two of its then directors, Milliken and Hill, are defendants, alleges, in substance, that the defendants Milliken and Hill, in pursuance of a conspiracy between them to fraudulently appropriate to their use the property of said company, had, during the six months preceding the lodging of the complaint, applied to their use certain property of said company, and that they were at the time of the institution of the suit using to their profit, and to the prejudice of defendant company, certain of its other property, in operating a claim of the Theresa Gold Mining Company. A money judgment was asked in favor of the defendant company against the two defendants Milliken and Hill for its property theretofore misappropriated, and an injunction restraining them from the further use of other of its property in operating said mining claim. The complaint further alleges that in pursuance of said conspiracy it was the intention of the defendant directors, Milliken and Hill, when it should be to their advantage to do so, to sell certain property owned by them to the defendant company to its prejudice and to their profit. It is also alleged that defendants Milliken and Hill are about to hold a stockholders' meeting with the purpose of reorganizing defendant company, and thereby continuing their control thereof. Averment is also made for the purpose of showing that it would not avail to apply to its board of directors to have the action brought by defendant company. A receiver of the company is also asked, to protect it against said fraudulent schemes of defendants Milliken and Hill, and an injunction against the holding of said stockholders' meeting. The relief thus sought was against the two directors personally for the wrongs which they had perpetrated, and which they intended yet to perpetrate. The court, upon hearing the evidence, denied all relief, including the application for a receiver.

"The judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar; or, as evidence, conclusive between the same parties upon the same matter directly in question in another court." King v. Chase, 15 N.H. 9, 15, 41 Am.Dec. 675. "But the judgment is thus conclusive only upon the matter which was directly in issue upon the former trial; and the question arises, what is to be understood by 'the matter in issue'?" Id., 15 N.H. 15, 41 Am.Dec. 675. "Any fact attempted to be established by evidence and controverted by the adverse party may be said to be in issue in one sense. As, for instance, in an action of trespass, if the defendant alleges and attempts to prove that he was in another place than that where the plaintiff's evidence would show him to have been at a certain time, it may be said that this controverted fact is a...