Cantwell v. Columbia Lead Co.

• Decision Date: 30 June 1906
• Parties: CANTWELL et al v. COLUMBIA LEAD CO. et al.
• Court: Missouri Supreme Court

97 S.W. 167

199 Mo. 1

CANTWELL et al v. COLUMBIA LEAD CO. et al.

Supreme Court of Missouri, Division No. 1.

June 30, 1906.

Rehearing Denied October 19, 1906.

1. EXCEPTIONS, BILL OF—FILING—PLACE.

The circuit court of a county appointed a receiver of a corporation, and on motion refused to vacate the appointment. After perfecting an appeal from the order refusing to vacate, and before the settling of the bill of exceptions a change of venue was taken on the merits of the cause. Held, that the bill of exceptions must be filed in the court from which the venue was changed, and a filing in the court to which the case was transferred is ineffectual.

2. APPEAL—ORDER REFUSING TO VACATE APPOINTMENT OF RECEIVER—MOTION—BILL OF EXCEPTIONS.

A motion to vacate the appointment of a receiver of a corporation can only become a part of the record by being incorporated in the bill of exceptions, and then by making the bill with its contents a part of the record by filing it in the proper court.

3. CORPORATIONS — RECEIVERS — APPOINTMENT—GROUNDS.

Where the facts disclose a scheme on the part of the majority of the directors of a corporation, some of whom are only nominal stockholders, to wreck the corporation in the interest of a wrongful combination of the majority of the stockholders with a majority of the directors, the court at the suit of minority stockholders, has jurisdiction to appoint a receiver.

Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Action by H. J. Cantwell and others against the Columbia Lead Company and others. From an order denying a motion to vacate the appointment of a receiver of the corporation, defendants appeal. Affirmed.

Judson & Green, B. Greensfelder, M. W. Huff, and T. P. Cayce, for appellants. Martin L. Clardy, W. M. Williams, Moses Whybark, H. J. Cantwell, and Stephen Cornelius, for respondents.

LAMM, J.

Plaintiffs, as minority stockholders in the Columbia Lead Company, a domestic corporation, lodge their verified bill in equity in the St. Francois circuit court, seeking a receivership for said corporation, as well as injunctive and other relief. Presently, Edward A. Rozier is appointed such receiver. Thereafter, defendants file a motion to revoke the appointment of Rozier. Thereafter, on hearing, oral testimony, affidavits, and documentary proofs are introduced, covering, say, 500 pages of printed matter, with the result that the court refuses to revoke its order. Thereupon defendants appeal.

The cause reaching this court, it was advanced, and plaintiffs file their motion to dismiss the appeal, assigning for grounds, inter alia, that no bill of exceptions was filed in the St. Francois circuit court, which motion was taken with the cause on its merits. It appearing after said proceedings in the St. Francois circuit court, and after an affidavit of appeal had been filed and appeal allowed, and, after a supersedeas bond in the sum of $100,000 had been provided, and after time given to file a bill of exceptions, and after an extension of that time—all in St. Francois circuit court—that thereafter (and prior to the settling and filing of the bill of exceptions), the cause was removed on its merits, on defendants' change of venue to the circuit court of Iron county in another circuit; we say all these things appearing, it is insisted by defendants that the bill of exceptions should have been filed in the circuit court of Iron county (as it was), and not in the circuit court of St. Francois county (as plaintiffs insist). It is argued, furthermore, that the bill of exceptions was filed in due time in the circuit court of Iron county and therefore plaintiffs' position is untenable. Defendants insist that if no bill of exceptions be here, yet the record proper is here, notwithstanding, and consists of the bill in equity, the order appointing a receiver, the motion to revoke, and the order made on that motion. That, in this view of the case, we must look to the petition to see whether it states a cause of action. And so looking, defendants argue, it states no cause of action for the appointment of a receiver, ergo they say the order refusing to revoke the appointment should be reversed, regardless of the evidence and the merits.

On the last hypothesis, the matter stands as if on demurrer, and, while the bill is very long, yet it cannot be condensed without danger of resulting ambiguity and unfairness; the facts being many, the allegations being minute and full, and the complaints being based on complications, covering much time. The bill is therefore presented, omitting caption and signature, as follows:

"Plaintiffs state:

"(1) That they are stockholders in the Columbia Lead Company, a corporation organized and existing under the laws of the state of Missouri under article 8, Rev. St. 1889, for the purpose of mining, milling, and smelting lead and other ores, and that this suit is brought for themselves and for all other stockholders in said corporation who desire to join herein.

"(2) That plaintiff H. J. Cantwell is the holder of more than 8,500 shares, of the par value of $10 each, of the capital stock of said Columbia Lead Company, and has, for more than four years, been a holder of as many or more shares of said stock as now held. That the plaintiff D. A. P. Cooke is the holder and owner of 500 shares of the capital stock of said corporation. That the plaintiff R. D. O. Johnson is the holder and owner of 267 shares of the capital stock of said corporation, or more. That the remaining plaintiffs are all holders of stock in said corporation.

"(3) That the Columbia Lead Company is incorporated under the laws of the state of Missouri as aforesaid, with a capital stock of $600,000, divided into 60,000 shares, of the par value of $10 each; and that all of said capital stock is fully paid up; and that said corporation has now, and usually keeps, an office and agent in St. Francois Co., Mo., for the transaction of their usual and customary business of mining.

"(4) That the Columbia Lead Company is the owner in fee simple of more than 1,000 acres of valuable lead lands in the Flat River Lead district in the county of St. Francois and state of Missouri; that said lands contain valuable deposits of lead ores, and that upon said lands are valuable improvements consisting of residences, offices, mills, shaft-houses, mining machinery, and railroads for the operation of a lead mine, and that the reasonable cash value of said lands and improvements is now at least in excess of $350,000, and probably in excess of $600,000, and that the mines hereinafter referred to are situated in said lands in St. Francois Co., Mo.

"(5) That a majority, to wit, 32,144 shares, out of the total of 60,000 shares of the stock of said Columbia Lead Company is owned and controlled by the American Metal Company, Limited, a corporation organized under the laws of the state of New York, and now appears upon the books of said Columbia Lead Company in the name of the American Metal Company, Limited. That the Metallurgische Gesellschaft, a corporation or association organized or existing under the laws of the Empire of Germany, and having its principal office at Frankfort-on-the-Main, the plaintiffs believe, own and control over 2,000 shares additional formerly held in the name of the Metallurgische Gesellschaft, but now appearing on the books of the Columbia Lead Company in the name of B. Hochschied, who is an officer of both the American Metal Company, Limited, and the Metallurgische Gesellschaft; and plaintiffs charge and believe that said B. Hochschied holds said stock as trustee for the Metallurgische Gesellschaft or the American Metal Company, Limited.

"(6) That said American Company Limited, and the Metallurgische Gesellschaft are practically the same company; being composed of practically the same stockholders.

"(7) That, under the laws of the state of Missouri, neither the said American Metal Company, Limited, nor the Metallurgische Gesellschaft is entitled to hold stock in a Missouri corporation.

"(8) That the said interests of the American Metal Company, Limited, and the Metallurgische Gesellschaft are hereinafter referred to as the "majority" interests, and the plaintiffs and the other stockholders of said Columbia Lead Company, as the "minority" interest.

"(9) That Jacob Langeloth of New York acquired about June 1, 1901, 35,001 shares of stock in said Columbia Lead Company, being 10,000 shares more than a majority, paying therefor $14 per share; and that he soon thereafter caused said stock to be transferred to the American Metal Company, Limited, and the Metallurgische Gesellschaft, and that, since that date, the American Metal Company, Limited, had held more than a majority of the stock of the Columbia Lead Company, and has, through its officers, agents and employés, controlled the elections for the directors of the said Columbia Lead Company, has always since then had more than a majority of the directors constituted from its agents, clerks and employés, and has dictated and controlled the policy and management of the Columbia Lead Company and completely dominated its affairs to the exclusion of the minority interest therein.

"(10) That the board of directors of the Columbia Lead Company consists of seven members; that the minority interest has now and has always had but two members of said board, to wit, H. J. Cantwell and R. D. O. Johnson, who are still directors in said company, and who join with the plaintiffs herein. That the remaning directors of said company are now C. M. Loeb, B. Greensfelder, Sol. Roos, Max Schott, and S. M. Rombauer. That C. M. Loeb is the president of the Columbia Lead Company, but is now absent from the state of Missouri, and is now domiciled in the state of New York and outside the jurisdiction of this court. That said Loeb holds but one share of stock in said Columbia Lead Company and is now and has at all the times herein mentioned been an...