Home Guano Co. v. State

• Citation: 69 So. 419,193 Ala. 548
• Decision Date: 18 June 1915
• Docket Number: 588
• Parties: HOME GUANO CO. et al. v. STATE ex rel. PIKE.
• Court: Alabama Supreme Court

69 So. 419

193 Ala. 548

HOME GUANO CO. et al. v. STATE ex rel. PIKE.

No. 588

Supreme Court of Alabama

June 18, 1915

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Mandamus by the State, on the relation of Norman Pike, against the Home Guano Company and another. Judgment for relator, and defendants appeal. Affirmed.

Espy &amp Farmer, of Dothan, for appellants.

Steiner Crum & Weil, of Montgomery, and B.F. Reid, of Dothan, for appellee.

SAYRE J.

This is a case of a petition to the circuit court of Houston for a writ commanding appellants, a corporation and its general manager, Hanahan, to permit appellee, Pike, a stockholder, to have access to and an examination of the books, records, and papers of the corporation.

Section 3477 of the Code of 1907, which is a substantial reproduction of section 1274 of the Code of 1896, confers upon stockholders in private corporations the right sought by petitioner, to be exercised at reasonable and proper times. Cobb v. Lagarde, 129 Ala. 488, 30 So. 326; Foster v. White, 86 Ala. 467, 6 So. 88.

The rule nisi was issued by the judge of the Twelfth circuit while sitting at an adjourned term of the court for Houston county, and was made returnable four days later, on, to wit February 13, 1915. On the return day the hearing was postponed to the 20th on the motion of the respondents. On both occasions respondents filed an objection, in the nature of a plea in abatement, by which they advanced the proposition that the rule was properly returnable to the next regular term of the court. There being no statutory provision otherwise, the rule in such cases is returnable before the court, not the judge, and the cause must be heard and determined by the court according to the course of the common law. State ex rel. Crow v. Crook, 123 Ala. 657, 27 So. 334. The power of the court (at an adjourned term) is as plenary as at a regular term, and such term "may continue as long as, in the opinion of the judge thereof, the business of the court and the public good requires." Code, § 3249, and cases cited in the annotation.

When the application for a writ of this character is made in vacation, necessarily the rule must be made returnable to the next term of the court. Ex parte Boothe, 64 Ala. 312. Mandamus is a civil remedy--that is, it is not a criminal proceeding (State ex rel. Pinney v. Williams, 69 Ala. 311); but it is prosecuted by petition addressed to the court or judge, and does not fall within the influence of those provisions of the Code (section 5296 et seq.) which require that civil actions must be commenced by the service of summons returnable to the next term of the court ( Capital City Water Co. v. State ex rel. Macdonald, 105 Ala. 406, 18 So. 62, 29 L.R.A. 743). To hold the rule for extraordinary writs, such as mandamus, returnable only to a future term of the court, as in the case of ordinary process obtained from the ministerial officer of the court, would deprive them of much of their efficacy and value. Hitchcock v. Galveston (C.C.) 48 F. 640. The Legislature has prescribed no such rule in the case of extraordinary remedies. We hold, therefore, that the fixing of the return day of the rule rested in the reasonable discretion of the judge, and that the cause was triable when and as it was tried. This seems to be the practice of the courts generally where the matter is not determined otherwise by statute. 26 Cyc. 450.

Appellants complain that they were not allowed a reasonable time within which to prepare their defense. No objection was made on this ground in the trial court. Their contention in that court was that the writ was not lawfully returnable to the current term, and that, however that might be, they were entitled to 20 days after service of notice of the rule. That contention has been disposed of. Appellants were allowed 10 days in which to get ready, and we are unable to say that this action on the part of the court was unreasonable.

It is averred in the petition that petitioner made request and demand of the respondent general manager "at a reasonable and proper time for permission to inspect and examine the books, papers, and records of said corporation which demand has been refused, and the petitioner informed by the representative of the respondent that he could not be permitted to make such examination...