Company v. McKibben

• Decision Date: 08 April 1899
• Docket Number: 9556
• Citation: 60 Kan. 387,56 P. 756
• Parties: THE HOME MINING COMPANY et al. v. D. A. MCKIBBEN et al
• Court: Kansas Supreme Court

56 P. 756

60 Kan. 387

THE HOME MINING COMPANY et al. v. D. A. MCKIBBEN et al

No. 9556

Supreme Court of Kansas

April 8, 1899

Decided January, 1899.

Error from Leavenworth district court; C. F. W. DASSLER, judge pro tem.

Judgment affirmed.

J. H Gillpatrick, F. P. Fitzwilliam, and William A. Porter, for plaintiffs in error.

Kelso & Van Tuyl, for defendant in error D. A. McKibben.

OPINION

DOSTER, C. J.:

This was a motion by certain stockholders of the plaintiff in error, the Home Mining Company, a corporation, to set aside a sale of the corporate property. The defendants in error had recovered a judgment against the corporation and had levied upon and appraised and sold some of its real property. The corporation itself made no resistance to the sale proceedings, but several of its stockholders presented to the court the following motion to set aside the sale:

"On this day come John Volz, James Foley, C. S. Hartough, and other stockholders in the above defendant mining company, and move the court to set aside the sale heretofore made on the 8th day of November, 1893, for the following reasons: (1) Because no appraisement of said property has ever been made according to law. (2) Because the appraisers did not see the property levied upon when they made their appraisement and the appraisement was not made 'upon actual view' of the property levied upon."

There is nothing in the record to show why the stockholders instead of the corporation took upon themselves the burden of moving to vacate the sale. The motion was overruled, and from the order overruling it the stockholders, in the name of the corporation, prosecute error to this court. It cannot be maintained. The directors of a corporation constitute its governing body. The executive officers of the company, either by special order of the directors or by general rule prescribed by them, or in pursuance of general authority implied from their positions and presumed to have been conferred upon them, are the ones to prosecute or defend legal proceedings in behalf of the corporation. If the directors be derelict in their duties, and through wilful neglect or for a fraudulent purpose fail to protect the corporate interests, the stockholders may do so in their stead, but to entitle them to do so it must be made to appear that the corporate officers, who are primarily charged with the duty, are wilfully or fraudulently neglectful of it. (Cook,...