Johnson v. United Rys. Co. of St. Louis

• Decision Date: 31 March 1910
• Parties: JOHNSON v. UNITED RYS. CO. OF ST. LOUIS et al.
• Court: Missouri Supreme Court

127 S.W. 63

227 Mo. 423

JOHNSON v. UNITED RYS. CO. OF ST. LOUIS et al.

Supreme Court of Missouri. Division No. 1.

March 31, 1910.

1. APPEAL AND ERROR (§ 882) — ESTOPPEL TO ALLEGE ERROR.

A defendant obtaining an order quashing a service of process by publication on the ground that he is a nonresident not amenable to constructive service is estopped to urge on plaintiff's appeal that the order is not final as to him so as to be appealable and is still pending below because an alias summons might be issued and served.

2. APPEAL AND ERROR (§ 79) — DECISIONS REVIEWABLE — FINALITY — ORDER QUASHING SERVICE.

In an action against defendants actually summoned and against nonresidents served by publication, the latter obtained an order quashing the service on the ground that they were not amenable to such service. Judgment was subsequently entered against plaintiff on demurrer of the defendants actually served to the complaint, and plaintiff appealed. Held, that the nonresident defendants could not move to dismiss on the ground that no judgment had been entered against them, so that the appeal was premature, because plaintiff was not bound to dismiss as to them, as he claimed a right to sue, nor could there be another judgment in the case than that entered on the demurrer, so that plaintiff could not have judgment against himself on the motion to quash, nor could defendants have a judgment on their motion which called only for an order.

3. APPEAL AND ERROR (§ 79) — FINAL JUDGMENT.

Where, in an action against resident defendants actually served with process and against nonresident defendants served only by publication, the court quashed the service by publication on the ground that the nonresidents were not amenable to constructive service and sustained a demurrer interposed by the resident defendants to the third amended petition, and rendered judgment as authorized by Rev. St. 1899, § 623 (Ann. St. 1906, p. 648), the court finally disposed of the case as to all defendants, and plaintiff could appeal.

4. CORPORATIONS (§ 194) — MEETINGS OF STOCKHOLDERS — NOTICE — PRESUMPTIONS.

In the absence of allegations to the contrary, the court will assume that the notice of a meeting of stockholders of a corporation was given, as required by Rev. St. 1899, § 1187 (Ann. St. 1906, p. 1001).

5. STREET RAILROADS (§ 61) — DUTY TO PUBLIC — "PUBLIC SERVICE CORPORATION."

A street railway corporation is a public service corporation, and owes duties to the general public which it cannot breach except under penalty of ouster from its franchise.

6. CORPORATIONS (§ 207) — RIGHTS OF STOCKHOLDERS.

One buying shares in a corporation holds them subject to the rights of bondholders and fellow shareholders, and the rights of shareholders are as between themselves so interdependent that one may not proceed by suit in equity in a corporate matter involving rescission and injunction, regardless of the interests of innocent investors in stock or bonds or bona fide creditors.

7. PLEADING (§ 34) — ALLEGATIONS — IMPLICATION.

A necessary implication in a pleading is the same as an allegation.

8. INJUNCTION (§ 1) — RIGHT TO INJUNCTION — "CONSCIENCE."

An injunction is a matter of grace, and not of right, and equity will never grant relief against public convenience or against "conscience" which is not the mere caprice of the individual chancellor, but is founded on the law.

9. INJUNCTION (§ 24) — RIGHT TO INJUNCTION.

In a suit for injunctive relief by a stockholder of a street railway corporation, the public convenience and public mischief may mark the distinction between sound and unsound discretion in granting an injunction on the facts pleaded, and the court must regard, not only the strict rights of the parties, but must also regard the interests of others, which may be more or less involved in it.

10. PLEADING (§ 216) — AMENDED PLEADING — DEMURRER — REVIEW.

The court in considering a demurrer to an amended bill may take no note of allegations of abandoned bills.

11. CANCELLATION OF INSTRUMENTS (§ 1) — DISCRETION OF COURT.

Rescission looks to restoring the status quo; and the remedy is administered in the exercise of a just and sound discretion.

12. CORPORATIONS (§§ 204, 209) — MINORITY STOCKHOLDERS — SUITS.

Where minority stockholders do not consent to a sale of the corporate property, and a sale has gone into effect, rescission will not be decreed where it will be productive of more injury than would result from a refusal of it, or where they stand by until the rights of strangers not parties to the suit and the public generally have attached.

13. CORPORATIONS (§ 202) — MINORITY STOCKHOLDERS — SUITS.

When one becomes the owner of shares in a corporation, his right to the equitable relief of rescission of a sale of corporate property is modified by the fact that he holds only a small portion of the stock, and where such person has an adequate remedy by a suit at law for his injuries from wrongful conduct whereby his stock is converted, or its market value taken from him, equity will not grant a rescission.

14. APPEAL AND ERROR (§ 843) — QUESTIONS REVIEWABLE — IMMATERIAL QUESTIONS.

Where a demurrer to a bill in equity was properly sustained, the ruling of the court in quashing the order of publication of process on some of the defendants will not be reviewed.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by James B. Johnson against the United Railways Company of St. Louis and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Jno. A. Gilliam, for appellant. Boyle & Priest and T. E. Francis, for respondents.

LAMM, P. J.

Suit in equity by a stockholder of the St. Louis Transit Company on behalf of himself (and any others who, willing to share the expense, may wish to join) for rescission of certain corporate acts and contracts and for an auxiliary injunction. Cast on demurrer to his third amended bill, plaintiff appeals.

The grounds of the demurrer were that the bill did not state facts sufficient to constitute a cause of action and was multifarious. The demurrer was offered on behalf of certain corporate defendants and individuals actually served with process. There was a group of defendants made parties to the third amended bill and not summoned. As to them, an affidavit of nonresidence was made and an order of publication issued, which was quashed and set aside on their motion; they appearing specially for that purpose only. In brief, the grounds of that motion were that the suit was not of the character authorizing publication against them under section 575, Rev. St. 1899 (Ann. St. 1906, p. 601), or any other statute; that the bill does not show that the property in their hands is within the state of Missouri. It shows that they are charged with making certain commissions and profits, which commissions and profits are the only property alleged to be in their possession, all the other property in question being shown to be in the possession of the defendants, the United Railways Company; that such profits are personal property, having its situs at the residence of defendants; and that the order of publication, improvidently made, confers no jurisdiction over defendants or any of them so as to authorize any judgment whatever against them. This motion was sustained with the demurrer, plaintiff assigning error on both rulings. The group of defendants served with summons file a motion here to dismiss the appeal. The other group (the one sought to be brought in by publication) file a motion to strike the cause from the docket. The first motion is predicated of the notion that there is no final judgment "as to all of the defendants, and plaintiff's appeal is therefore premature." The grounds of the last motion are, first, because there is no final judgment against movents; and, second, no order below allowing an appeal as against them. The questions here are three: First. Were the motions to dismiss and strike from the docket well taken? Second. Was there error in sustaining the demurrer? Third. Or in sustaining the motion to quash the order of publication?

1. Of the motions to dismiss and strike off:

They are supported in briefs of like tenor, therefore call for a common exposition. The record shows that on November 12, 1906, the following entry was spread of record: "The court, having heard and duly considered the demurrer to the amended petition, and the motion to quash the order of publication as to certain defendants, * * * doth order that the same be, and are hereby, sustained." On November 19th plaintiff has his bill of exceptions settled, allowed, signed, and filed, duly saving an exception to the ruling of the court on the motion to quash. November 22d, at the same term, a nunc pro tunc entry was made correcting the entry of the 12th. In effect, it left it stand as a ruling on the motion to quash; that is, it says nothing about it, but narrates that by inadvertence the entry of November 12th does not correctly set forth the order and judgment, that the cause came on to be heard on the demurrer of certain defendants (naming them), that the court is now sufficiently advised in the premises, and "doth order, adjudge, and decree that said demurrer be, and the same is hereby, sustained." It goes on to find that this is the third amended petition, and that two other amended petitions had been "adjudged insufficient in whole upon demurrer." On such premise it adjudges plaintiff pay treble costs, take nothing by his writ, that said defendants go hence without day, and that the bill (quoting) "be dismissed out of court for want of equity, and that this decree be treated and regarded and stand in all respects as the final decree in this cause," etc. Following such nunc pro tunc entry plaintiff filed his affidavit of appeal and one was allowed to him. It is on such a record defendants contend there is no final disposition of the cause as to the group of nonresidents, and, they say,...