Mantle v. Jack Waite Mining Co.

• Decision Date: 16 December 1913
• Citation: 136 P. 1130,24 Idaho 613
• Parties: MANTLE v. JACK WAITE MINING CO.
• Court: Idaho Supreme Court

136 P. 1130

24 Idaho 613

MANTLE v. JACK WAITE MINING CO.

Supreme Court of Idaho

December 16, 1913

On rehearing of respondent’s petition to affirm original judgment without modification. Opinion filed upon appellant’s petition for rehearing affirmed.

For former opinion, see 135 P. 854.

A. G Kerns, of Wallace, for appellant.

Jas A. Wayne, of Wallace, and John P. Gray, of Cœ ur d’Alene, for respondent.

OPINION

STEWART, J.

A petition for rehearing by counsel for appellant was filed in this case, and this court held that the only shares of stock involved in the controversy, and against the assessment of which an injunction should have been issued in the case, were the 66,000 shares of stock secured by Mantle from the promoters, and that the trial court erred in including in the judgment other shares, amounting to 9,750, owned by Mantle and the judgment was modified by striking out "9,750" shares of stock.

Thereafter attorneys for respondents filed a petition for rehearing, which was granted, and this branch of the case was thereafter reargued. We have examined this question again, and see no merit in the showing made and argument advanced. The opinion filed upon appellant’s petition for rehearing is affirmed.

AILSHIE, C. J., concurs.

SULLIVAN, J. (dissenting).

I am unable to concur in the conclusion reached by the majority of the court, to the effect that there was no merit in the petition for a rehearing. This court held in its original opinion in this case as follows: "Under this limitation the corporation has no power to make an assessment until the promotion stock, as provided in the contract, is paid up to 25 cents per share, which was not paid in this case, and had not been paid at the time the plaintiff’s stock was assessed and sold; therefore the assessment was void." In the original complaint, the ownership by the respondent, Mantle, of 75,750 shares of stock was alleged, and also that the corporation was wrongfully attempting to assess the same, thus putting directly in issue the authority of the corporation to assess, not only said 66,000 shares of the treasury stock, but 9,750 shares of the common stock, of said corporation. The trial court enjoined the sale of the entire 75,750 shares of stock. The amended and supplementary complaint set forth the ownership of said 75,750 shares, and alleged that the same and all thereof had been sold in violation of the injunction of the court, and in violation of the rights of...