Evans v. Dennis
| Decision Date | 09 January 1948 |
| Docket Number | 16037. |
| Citation | 46 S.E.2d 122,203 Ga. 232 |
| Parties | EVANS v. DENNIS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the judgment rendered, permitting the opening of a default, is based on conflicting evidence, the discretion vested in the trial court will not be controlled unless manifestly abused.
2. A by-law of a corporation requiring a stockholder, before selling his stock, to afford other stockholders an opportunity to purchase such stock at a stipulated price, is not void per se as being against public policy. A petition charging several defendants with a conspiracy to violate such an agreement sets forth a cause of action.
3. A petition charging a named defendant with acts of wilful misfeasance, and resulting injury to the petitioner, alleges a cause of action.
Randall Evans, Jr., filed an equitable petition against Belmont Dennis, C. W. Stephens, Sr., C. W. Stephens, Jr., J. Barton Stephens, J. Fred Eden, and the McDuffie Progress Publishing Company, a corporation. The petitioner alleged that: He is the owner of 20 per cent of the stock of the McDuffie Progress Publishing Company. From January 1, 1946, to the date of the filing of the action, Dennis was the owner of the remaining 80 per cent of the stock. At all times mentioned in the petition, the corporation had a by-law prohibiting the sale of stock by any stockholder unless it is first offered to other stockholders at par value plus 10 per cent. During October, 1946, Dennis, in violation of this by-law, conspired with C. W. Stephens, Sr., C. W. Stephens, Jr., and J. Barton Stephens, and attempted to sell his stock to them, without first offering to sell such stock to the petitioner. The petitioner made a tender pursuant to the terms and conditions of the by-laws of the corporation, and he is ready and willing to purchase the stock under such terms. The Stephenses have conspired with Dennis in the purchase of the stock and in stated wrongful and fraudulent acts while operating the affairs of the corporation. Two of the defendants have paid to themselves extravagant salaries to the detriment of the petitioner, a minority stockholder. The Stephenses, while purporting to operate the affairs of the corporation, have failed to collect certain advertising debts of Dennis to the corporation and have sought to charge the obligations of Dennis for advertising off of the books of the business. The petition alleged many acts of misman-agement and misconduct by the Stephenses in the operation and management of the affairs of the corporation. In paragraph 13 of the petition it is charged that: J. Fred Eden was in charge of the corporation and operated its office and affairs from January through October, 1946, he inserted political advertisements in the newspaper published by the corporation in the interest of Dennis in a campaign for lieutenant governor; no charge was made on the books for such advertisement; Eden collected accounts and forwarded such collections directly to Dennis after the purported sale had taken place; and committed other wrongful acts with full knowledge that he was acting against the interest of the petitioner and the corporation.
The petitioner prayed for an accounting of the affairs of the corporation from January 1, 1946, and for an adjustment of certain amounts alleged to be illegally expended by the defendants in charge of the affairs of the corporation, the appointment of a receiver, and for a rescission of the attempted sale of stock by Dennis to the Stephenses. General and special equitable and legal relief was prayed against the Stephenses. Special relief was prayed against Eden.
The record shows that Dennis failed to file any defensive pleadings within the time provided by law (Ga.L. 1946, p 777, § 18). After the expiration of the period for filing defensive pleadings as a matter of right, Dennis presented a motion to open the default judgment. All parties were notified and given an opportunity to present evidence. The trial judge entered an order permitting Dennis to file defensive pleadings, and to pay the accrued costs. This order was later revoked and a new order entered permitting court costs to be paid as of a later date and permitting opening of default at the later date. Dennis immediately filed a demurrer to the petition, which was later amended. The demurrer of Dennis was sustained and the petition dismissed as to him.
The demurrer of J. Fred Eden was sustained and the petition dismissed as to this defendant. The exceptions here are to the order opening the default as to Dennis and to the judgments sustaining the demurrers of Dennis and Eden.
Evans & Evans, of Thomson, for plaintiff in error.
Price & Spivey, of Swainsboro, M. C. Barwick, of Louisville and Robert E. Knox, of Thomson, for defendants in error.
1. The first question for determination here is whether or not the trial court erred in permitting the default to be opened and defensive pleadings to be filed by the defendant, Belmont Dennis. Section 21 of the Rules of Procedure Act (Ga.L. 1946 p. 778) provides in part: 'At any time before final judgment, the judge, in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.' ...
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...206 Cal. 282, 285, 274 P. 336.) Agreements in the nature of the writing under scrutiny are not against public policy. (Evans v. Dennis, 203 Ga. 232, 46 S.E.2d 122, 125.) Accordingly, agreements whereby a party is given the 'first opportunity' or the 'first right' or the 'first privilege' or......
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...based on conflicting evidence, the discretion vested in the trial court will not be controlled unless manifestly abused.' Evans v. Dennis, 203 Ga. 232(1), 46 S.E.2d 122. 3. The trial court's discretion to open the default was not disminished by the rendition of the jury verdict. Section 55(......
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