Knoll v. Levert

• Decision Date: 14 December 1914
• Docket Number: 20845
• Citation: 66 So. 959,136 La. 241
• Court: Louisiana Supreme Court
• Parties: KNOLL et al. v. LEVERT. In re LEVERT

66 So. 959

136 La. 241

KNOLL et al. v. LEVERT.

In re LEVERT

No. 20845

Supreme Court of Louisiana

December 14, 1914

SYLLABUS

(Syllabus by the Court.)

A mandamus will not lie to the president of a corporation commanding him to call a stockholders' meeting, where the charter gives to the board of directors the power to provide for general and special meetings of the stockholders, and where the board of directors have not by resolution or by-law made it the duty of the president to call such meeting.

When a corporation is sued, citation must be directed to the corporation, and not to an officer.

C. F Borah and H. G. Bloch, both of New Orleans, for applicant.

Woodville & Woodville, of New Orleans, and Cappel & Cappel, of Marksville, for respondents.

OPINION

SOMMERVILLE, J.

Plaintiffs, alleging themselves to be stockholders of the Shirley Planting Company, and that it was the duty of J. B. Levert, defendant, to call the annual meeting of the stockholders in and for the year 1914, ask that a mandamus issue directed to the said Levert to call the meeting. The petition was subsequently amended so as to make J. B. Levert, president of the Shirley Planting Company, the respondent in the cause, and plaintiffs pray that the mandamus issue to him as president.

Defendant excepted to the citation addressed to him as president of the Shirley Planting Company, on the ground that the citation should have been addressed to, and served upon, the Shirley Planting Company, and, for further reason why the alternative writ of mandamus should not be made peremptory, alleged that he was without authority, as president of the board of directors of the said company, to call a stockholders' meeting, and he set up other grounds of defense in his return.

The alternative writ of mandamus was made peremptory, which order, on appeal to the Court of Appeal, was affirmed, and defendant has invoked the supervisory jurisdiction of this court.

The charter of the Shirley Planting Company was offered in evidence on the trial; and to that instrument the consideration of the court is confined. No by-laws of the company were offered and filed; and our attention has not been directed to any statute governing the point here involved.

Article 2 of the charter provides that the domicile of the corporation shall be in the city of New Orleans --

'where all citations and other legal process shall be served upon the president, or, in his absence, upon the vice president, or, in his absence, upon the secretary and treasurer, or as otherwise provided by law.'

Article 5 provides:

'All of the corporate powers of this corporation shall be vested in and exercised by a board of directors, to be composed of not less than three nor more than six stockholders, the stockholders having the right at each annual election to select such of this number as they may desire, and to elect them for one year, or until their successors may be elected and qualified.'

The first board of directors was named in the charter, and it was further provided:

'The board of directors, named herein shall serve until the first Monday of March, 1914, at which time a new board shall be elected, and a board shall be elected annually thereafter on said first Monday in March. * * *

'The board of directors shall have full power to provide for the general or special meetings of the stockholders and of the board of directors.

'All notice of stockholders' or directors' meetings shall be preceded by notice. * * *

'All notices of stockholders' meetings shall be by written notice given ten days in advance of the meeting,' etc.

The charter does not give to the president of the corporation the right to call meetings of the stockholders; on the contrary, it provides that:

'The board of directors shall have power to provide for the general or special meetings of the stockholders and of the board of...