Cobb v. Lagarde

• Decision Date: 17 April 1901
• Citation: 30 So. 326,129 Ala. 488
• Parties: COBB v. LAGARDE ET AL.
• Court: Alabama Supreme Court

30 So. 326

129 Ala. 488

COBB v. LAGARDE ET AL.

Supreme Court of Alabama

April 17, 1901

Appeal from city court of Anniston; James W. Lapsley, Judge.

Petition by Ernest Lagarde & Sons for a writ of mandamus against R. H Cobb. Writ granted, and respondent appeals. Affirmed.

A petition was filed by Ernest Lagarde & Sons to the judge of the city court of Anniston, in which they asked the issuance of a writ of mandamus directed to R. H. Cobb, as president and general manager of the Anniston Lime & Stone Company requiring him to permit an inspection of the books, records and papers of the corporation by the petitioners in person and by an expert accountant. The petitioners averred that they were a partnership, and as such partnership owned 54 1/2 shares of the capital stock of the Anniston Lime & Stone Company, a corporation under the laws of Alabama; that as such stockholders it was proper and necessary for the protection of their interest that they should have the right and privilege of inspecting and examining the records, books and papers of said corporation at reasonable and proper times, and that the books of said corporation were of such a nature that it was necessary for them, in addition to their own examination, to have an expert accountant to carefully examine said records, books, and papers; that before the filing of the petition they had made demand upon R. H. Cobb as president and general manager of said corporation, and who had charge of all said records and papers, for the privilege of examining the same at reasonable and proper times, but that said Cobb had willfully disregarded the rights and interests of petitioners in said corporation, and refused to permit the petitioners to make such inspection and examination. Therefore the petitioner prayed for the issuance of a writ of mandamus as stated above. To this petition the respondent demurred upon several grounds, which may be summarized as follows: (1) That the petition fails to show any reason or necessity for the examination of the books records, and papers of said corporation by the petitioners; (2) it fails to show that a demand for such inspection and examination was made at a proper time and place, or was made of the custodian of the records; and (3) that the petition fails to show that the motive or purpose of the petitioners in demanding an inspection of said books and papers and records was a proper notice or purpose. This demurrer was overruled. Thereupon the respondent filed an answer, in which he denied that the petitioners were the owners of any stock in the Anniston Lime & Stone Company. In his answer the respondent further denied that he was the custodian of the books, records, and papers of said corporation, but set up that the records, books, and papers of said corporation were in the custody of the secretary and treasurer of said corporation. He further denied that any specific demand had been made upon him for an examination of said books, records, and papers. The respondent then set up in his answer that the inspection and examination sought by the petitioners was for an improper purpose; that the interest of the petitioners was hostile to the Anniston Lime & Stone Company, and to its management; that the petitioners are the owners of and are engaged in a rival or competitive business; and that the inspection by the petitioners of the books, records, and papers of the Anniston Lime & Stone Company would be detrimental to the interests of said corporation. The bill of exceptions contains the following recital: "The plaintiff procured and had served this day [June 4, 1900] upon the defendant, R. H. Cobb, a subp na duces tecum, requiring him (the defendant) to produce on the trial of the cause the stock book of the Anniston Lime & Stone Company. The defendant objected to the production of this book under a subp na duces tecum, and assigned as grounds of objection: First, that the statute provides another and different mode for compelling the production of books or writings in the possession of a party; and, second, because the said book is one of the books for the inspection of which this suit has been instituted. The court overruled the defendant's objection, and required the production of the stock book, and to this ruling of the court the defendant then and there duly excepted. The plaintiffs introduced the said R. H. Cobb as a witness, and the said Cobb, in answer to a question propounded by the plaintiffs' attorney, testified that the book then presented by him was the stock book of the Anniston Lime & Stone Company, which petitioners then offered in evidence. When the plaintiffs concluded the examination of the said R. H. Cobb, defendant then and there asked and demanded the right to cross-examine as petitioners' witness the said Cobb. The court refused to allow the defendant to so cross-examine the said witness; the court replying, 'You can examine Mr. Cobb, but not now.' The defendant then and there duly excepted to the ruling of the court." The petitioners then introduced in evidence the stubs contained in the stock books of the Anniston Lime & Stone Company, which showed the issuance to the plaintiffs of said shares in the said corporation, amounting to 54 1/2 shares. They also introduced in evidence the certificates of stock which plaintiffs, as witnesses, testified belonged to them. The evidence for the petitioners tended to show that at a meeting of the directors of the Anniston Lime & Stone Company one of the petitioners requested the respondent, R. H. Cobb, who was the president and general manager of said company, to allow him to examine the books of said corporation; that, upon objection on the part of one of the directors, Cobb said that he would consult an attorney in reference to allowing said petitioners to examine the books of the company; that a few days afterwards the respondent was asked again if h...