Horton v. State ex rel. Hayden

• Decision Date: 08 November 1900
• Citation: 60 Neb. 701,84 N.W. 87
• Parties: HORTON v. STATE EX REL. HAYDEN ET AL.
• Court: Nebraska Supreme Court

60 Neb. 701

84 N.W. 87

HORTON

v.STATE EX REL. HAYDEN ET AL.

Supreme Court of Nebraska.

Nov. 8, 1900.

Syllabus by the Court.

1. The statute authorizing the issuance of a peremptory mandamus without notice has reference to cases in which the refusal of a public officer to discharge an official duty is so obviously inexcusable, and the necessity for prompt action so imperative, that notice must be dispensed with in order to prevent a failure of justice.

2. But while it is competent for the legislature to authorize courts in a proper case to coerce official action without notice and an opportunity to the recalcitrant to be heard, no such power can be exerted against a private corporation, or the officers by which its functions are performed.

3. No person can be deprived of his property or other valuable right by the exercise of judicial or other governmental power, without notice to such person, and reasonable opportunity to be heard in his defense.

4. When the trial court has treated a verified petition for a writ of mandamus as a pleading, it will be so considered by this court when the case is brought here for review.

5. The writ of mandamus may not be issued in any case where there is a plain and adequate remedy, in the ordinary course of the law.

6. A motion for a new trial is proper only where there has been a trial of an issue of fact on the pleading.

7. A final judgment based upon a pleading defective in substance may be reviewed without a motion for a new trial having been filed and ruled upon.

8. Any party prejudiced by a judgment rendered against him may, by taking the proper steps, have the same reviewed.

Error to district court, Douglas county; Scott, Judge.

Application by the state, on the relation of William Hayden and others, for a writ of mandamus against Richard S. Horton, trustee in bankruptcy of the Greater America Exposition. From an order granting the writ, the trustee brings error. Reversed.

James W. Hamilton, Geo. A. Day, and Richard S. Horton, for plaintiff in error.

C. J. Smyth, Geo. D. Pritchett, W. S. Streator, and W. D. McHugh, for defendants in error.

SULLIVAN, J.

This proceeding in error brings before us for review a judgment rendered by Cunningham R. Scott, one of the judges of the district court for the Fourth judicial district, allowing a peremptory writ of mandamus against the Greater America Exposition and certain of its officers. The application for the writ states that the Greater America Exposition is a corporation organized under the laws of the state of Nebraska for the purpose of holding an exposition, and transacting business therein, with its principal place of business in the city of Omaha, Douglas county, Neb.; that W. S. Streator is the auditor of said exposition, Dudley Smith is secretary thereof, and C. J. Smyth one of the directors and chairman of the executive committee of the corporation; that the board of directors of said corporation, pursuant to its articles of incorporation, had elected the following directors: C. J. Smyth, William Hayden, P. E. Iler, J. B. Kitchen, and H. J. Penfold, and executive committee, of which C. J. Smyth was chosen chairman, and that said executive committee had all the powers of the board of directors, when said board was not in session, in reference to all matters which the board had not reserved to itself; and that the board of directors was not in session at the time referred to in the application, and had not reserved to itself the matters referred to in the application. The application further states that on the 3d day of July, 1899, Hayden Bros. had subscribed for $10,000 of the capital stock of the Greater America Exposition, for the purpose of having the stock in that amount issued to them, but that about a month previous thereto the board of directors of the corporation had ordered the stock books of the corporation closed at noon, July 1, 1899, and that said stock, therefore, could not be and was not issued to them, and that the payment by them of $10,000 to the corporation was for the sole purpose of having issued to them said capital stock; that, having learned these facts, they withdrew their subscription for said stock, and presented to the executive committee of the corporation the claim that the $10,000 be returned to them; that on the 12th day of July, 1899, the said executive committee, at a regular meeting, resolved that the $10,000 should be returned to them on the ground that the officers of the executive committee had no right to accept any subscription for stock after the 1st day of July at 12 o'clock, and directed the auditor of the corporation to draw a warrant to them for the amount, and that their action in that regard was regular, lawful, and in all respects the act of the corporation; that, therefore, the executive committee had determined that no money should be paid out of the treasury of the exposition, except upon a warrant drawn upon the treasury, signed by the chairman of the executive committee and the secretary and auditor of the exposition, and that such warrants are ordinarily drawn and signed by the auditor in obedience to the orders of the executive committee, and by him presented to the chairman of the executive committee for his signature, and that said auditor, upon being requested so to do, had refused to draw and deliver to Hayden Bros. the warrant for $10,000, as he had been ordered to do by the executive committee. The application further states that the petitioners are without adequate remedy at law, and prays that a peremptory writ of mandamus might issue to the Greater America Exposition, W. S. Streator, auditor, Dudley Smith, secretary, and C. J. Smyth, chairman of the executive committee, commanding that said auditor draw and issue a warrant to and in favor of Hayden Bros. upon Frank Murphy, treasurer of the corporation, unconditionally ordering said treasurer to pay them the sum of $10,000 forthwith, and that said secretary and chairman of the executive committee sign and deliver the same to the petitioners. On July 15, 1899, Judge Scott considered this application at chambers, and, without notice to the respondents and in their absence, allowed the peremptory writ. Afterwards the Greater America Exposition failed, and the plaintiff in error, having, as its trustee in bankruptcy, succeeded to its rights, entered his...