Mabry v. Ross

• Decision Date: 30 September 1870
• Citation: 48 Tenn. 769
• Parties: Joseph A. Mabry v. George W. Ross et al.
• Court: Tennessee Supreme Court

48 Tenn. 769

Joseph A. Mabry

v.George W. Ross et al.

Supreme Court of Tennessee.

September Term, 1870.

FROM KNOX.

Petition for a writ of supersedeas, to the Chancery Court at Knoxville, O. P. TEMPLE, Ch.

GEORGE BROWN, J. R. COCKE, and W. J. HICKS, for Petitioner.

A CALDWELL and J. M. THORNBURG, for Respondents.

SNEED, J., delivered the opinion of the Court.

This is a petition presented to this Court by Joseph A. Mabry, complainant in the case of Joseph A. Mabry v. George W. Ross, et al., now pending in the Chancery Court at Knoxville, praying for a writ of supersedeas to be issued from this Court, superseding an interlocutory order in said cause, dissolving an injunction granted upon the prayer of his said original bill.

The petition alleges that on the 1st day of October, 1870, the petitioner, as President and Receiver of the Knoxville and Kentucky Railroad Company, filed his original bill in the Chancery Court at Knoxville, against George W. Ross, C. M. McGhee, Perez Dickinson, John Fouche, H. S. Chamberlain and E. J. Sanford, of Knox county, and E. C. Edwards, a citizen of Anderson county, charging, among other things, that under the charter of said company and the amendments thereto, no person but a bona fide stockholder in his own right, of at least five shares of stock, can be a Director of said company, except State Directors, and persons appointed by a county or corporation owning stock in said company; that, in accordance with the charter and by-laws of said company, and at the annual meeting of the Directors thereof, on the -- day of March, 1870, the petitioner was duly elected President of said company for the next twelve months then ensuing, which office he still holds, and claims the right to retain until the expiration of his said term; that in September, 1869, he was appointed Receiver of said railroad company, under the laws then in force, and gave bond, and was duly commissioned as such; and that under the present law he had been re-appointed and commissioned as said Receiver; and that, as such Receiver, the said corporation was largely indebted to him; that at a meeting of the company, on the 26th of September, 1870, the defendants were elected Directors thereof; and that said defendants. Geo. W. Ross and E. C. Edwards, not being the owners in their own right, of the requisite amount of stock, were elected in contravention of the laws governing said corporation, and that their election was void; that said defendants were about to hold a meeting for the purpose of electing another President, and thus jeopardize the interests of the road, and place its management in unauthorized hands; that such an election would bring a cloud upon complainant's right as President and Receiver, and if consummated would result in irreparable injury to the State, to the interests of the road, and to complainant.

The prayer of the said bill was, among other things, that, at the hearing of the cause, said defendants, Ross and Edwards, should be enjoined from acting as Directors of said road, under said void election, and that their election be declared null and void; that the defendants be enjoined from proceeding to elect a President, until the expiration of the petitioner's said term of twelve months; and that they be enjoined from doing any act to disturb the complainant in the quiet enjoyment of his said office during his said term; that in the meantime, temporary injunction issue, restraining the defendants, as aforesaid, until the final hearing of the cause; that on the 1st of October, 1870, a preliminary fiat of injunction was granted by the Hon. E. T. Hall, Judge, &c., and, upon the execution of the required bonds, was issued and served; that on the 18th day of October, 1870, the defendants filed their joint answer to said bill, which answer was excepted to by complainant for insufficiency; and the said exceptions, four in number, were sustained by the Clerk and Master, and, on appeal to the Chancellor, three of said exceptions were sustained by him; that the defendants, thereupon, without having filed a sufficient answer, moved the Chancellor for a dissolution of said injunction for want of equity on the face of the bill; that said suit is still pending in said Chancery Court, undetermined; and that defendants have filed no other answer than the insufficient answer aforesaid; yet that the Chancellor, on the 31st of October, 1870, made an order dissolving said injunction upon the alleged ground of want of equity on the face of the bill. The petition alleges that the action of the Chancellor was erroneous; first, because there is ample equity in said bill to entitle the petitioner to the aid of a Court of Chancery, and that there is no demurrer to said bill; secondly, the defendants having put in an insufficient answer, were not in condition to move the Court for a dissolution, without having first cleared their contempt by filing a sufficient answer. The petition closes with the prayer that this Court grant the writ of supersedeas to vacate said interlocutory order dissolving the injunction until the hearing of the cause on its merits.

In the view we have taken of this application, we do not feel called upon to determine or to notice the various questions made in the argument touching the rights and equities of the parties on the merits of the cause. The simple inquiry for us is as to the power of this Court to grant the writ of superse...