Knowles v. Lower Clear Creek Ditch Co.

• Decision Date: 17 December 1900
• Citation: 27 Colo. 469,63 P. 317
• Parties: KNOWLES v. LOWER CLEAR CREEK DITCH CO. et al.
• Court: Colorado Supreme Court

63 P. 317

27 Colo. 469

KNOWLES v. LOWER CLEAR CREEK DITCH CO. et al.

Supreme Court of Colorado

December 17, 1900

Appeal from district court, Arapahoe county.

Action by Joseph C. Knowles against the Lower Clear Creek Ditch Company and others. From a judgment for defendants, plaintiff appeals. On rehearing. Former opinion withdrawn, and appeal dismissed.

Appellant as plaintiff, brought this action in the court below for the purpose of having a receiver appointed to take possession of and sell certain ditch, water rights, and other property, and distribute the proceeds among the stockholders of the Clear Creek Platte River Ditch & Mill Company. He claims this relief upon facts stated in his complaint, which are to the effect that the above-named company was a corporation organized under the laws of this state, the charter of which expired by limitation on the 12th day of July, 1893; that he is the owner of a part of one share of the stock of the defunct corporation; that at the time of the expiration of its charter it owned the property which he seeks to have disposed of through a receiver; that at the time of the expiration of the charter certain of the individual defendants were the directors of the corporation; that these defendants have never entered upon the performance of the duties imposed upon them by law, by virtue of their relationship to the company at the time its charter expired but have wholly refused to act in that capacity, or as trustees of the stockholders of the corporation with respect to its property; that they and the remainder of the individual defendants, except Sigler, have conveyed to the Lower Clear Creek Ditch Company their individual interests in the assets and property of the defunct corporation, and that the Lower Clear Creek Ditch Company has taken possession of all the estate and property, both real and personal, of the Clear Creek Platte River Ditch & Mill Company, and refuses to recognize his right in and to any of such property. To this complaint a general demurrer was interposed by the defendant the Lower Clear Creek Ditch Company, which was sustained and, plaintiff electing to stand by his complaint, on motion of the defendant demurring his action was dismissed. From this judgment he brings the case here on appeal.

Section 619, 1 Mills' Ann. St. provides: 'Upon dissolution by expiration of its charter * * * of any corporation, * * * unless some other person * * * be appointed by some court of competent jurisdiction, the board of directors * * * of such corporation, * * * acting last before the time of their dissolution, * * * shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the same; * * * to have, hold, reserve, sell, and dispose of property, real and personal, of any such corporation dissolved; to adjust and pay all the debts of the corporation dissolved; to divide the residue of the moneys and property belonging to the corporation dissolved, after payment of debts and the necessary and reasonable expenses, among the stockholders holding stock in such corporation, in proportion to the amount paid upon such stock of each stockholder.' Counsel for appellees contend that this court has no jurisdiction to entertain the appeal, for the reason that neither a freehold nor franchise is involved.

Frank I. Willsea, for appellant.

Hugh Butler, for appellees.

GABBERT J. (after stating the facts).

A rehearing was granted for the one purpose of reconsidering the question of the jurisdiction of this court to entertain this appeal. Counsel for appellant contends that the action relates to both a franchise and a freehold. Counsel for appellees suggests that jurisdiction might attach on error but that it cannot on appeal. This distinction is not tenable. The Code of Civil Procedure provides that appeals shall lie from the district to the supreme court in all cases where the judgment appealed from relates to a franchise or freehold. Section 388...