Densmore v. Shepard
| Citation | 48 N.W. 528,46 Minn. 54 |
| Parties | Benjamin Densmore and another v. Henry L. Shepard and another, impleaded, etc |
| Decision Date | 08 April 1891 |
| Court | Supreme Court of Minnesota (US) |
Rehearing Denied 46 Minn. 54 at 60.
Appeal by defendants Henry L. Shepard and George Giddings (impleaded with the Red Wing Lime & Stone Company and others) from an order of the district court for Goodhue county, Crosby, J presiding, refusing a new trial.
Order affirmed.
James D. Shearer, for appellants.
J. C McClure, for respondents.
This was an action brought by creditors against a corporation their judgment debtor, these two appellants, who were stockholders, and other persons, also stockholders in the corporation. The appeal is from an order denying a new trial, the motion therefor having been made upon the minutes of the court. No case containing the testimony was made, nor does the bill of exceptions present any part of the same. The record which we are asked to consider consists of the pleadings, a motion made when the plaintiffs rested their case to dismiss the same on three grounds, stated in substance as follows: First, that plaintiffs had failed to show any personal liability against the appellant defendants; second, that the action could not be maintained, because it sought to charge stockholders for the amount of stock held or owned by them, without joining all of the corporation creditors as plaintiffs and all of the stockholders as defendants, testimony having been offered to show that there were stockholders not joined; and, third, that two causes of action, -- one at law, the other in equity, -- were improperly united in one complaint to enforce the personal liability of stockholders, which motion was denied by the court. It also appears from the record that when the motion was denied the trial proceeded, resulting in the findings before mentioned, judgment being ordered against the corporation, the appellants, and another stockholder, who had been duly served with the summons, but had made no defence.
The first ground for dismissal stated in the motion raised a question to be determined exclusively by the testimony as it then stood. In the absence of this testimony, we are unable to review the ruling.
In respect to the third ground for dismissal, -- that two causes of action were improperly united in one complaint, -- the court ruled correctly, because the objection had not been made by either answer or demurrer. It had been waived. Gen. St. 1878, c. 66, § 95. With these brief remarks with reference to the first and third grounds for dismissal urged by appellants in the court below, we come to a consideration of the second.
The complaint alleged the defendant corporation to have been organized under the laws of this state, and the general nature of its business to have been "the manufacture and sale of lime, quarrying stone for making lime and for building and other purposes, digging and selling sand together with the buying and selling of lime, hair, sand, cement, and like articles and other building materials, and the doing of all things necessary to carry on said business." The defendants averred in their answers that the Red Wing Lime & Stone Company was a manufacturing corporation, and among the findings of fact is one that the nature of the business of said corporation was stated and specified in its articles of incorporation exactly in the words which we have quoted from the complaint. In this connection it was also found as a fact that the corporation only engaged in the business of manufacturing and selling lime, although intending to engage in all business mentioned in its articles, had the enterprise proved a success. There was a finding also that each of the appellants had paid in full for his shares of stock when purchasing the same. With these findings of fact, presumably justified by the testimony, coupled with an order for judgment against all of the defendants who had been served with the summons, it is obvious that, whether within the contemplation of the parties when drawing their pleadings, or within the issues presented thereby, the parties introduced testimony bearing upon the question of appellants' constitutional liability as stockholders in the defendant corporation, and that they tried the question precisely as if no other issue had been made. Upon the testimony as to the general nature of the business for which the corporation was organized as the same was stated in its written articles, and also upon that introduced for the purpose of showing the character of the business it actually transacted, the court found that the defendant corporation was not organized for the sole purpose of carrying on a manufacturing business, and such as is properly incidental to or necessarily connected with a manufacturing business. This being an issue made by the litigants upon the trial, so far as we know without objection by either, the conclusion of law declaring the appellants liable, -- the amount of stock held and owned by each being much greater than the amount of plaintiffs' demand, -- naturally followed the finding of fact. The court determined the question upon both law and fact, and there is nothing in the record from which it...
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