N. Dakota Wheat Growers' Ass'n v. Moore

• Decision Date: 24 June 1925
• Docket Number: No. 4919.,4919.
• Citation: 204 N.W. 834,52 N.D. 904
• Parties: NORTH DAKOTA WHEAT GROWERS' ASS'N et al. v. MOORE et al.
• Court: North Dakota Supreme Court

52 N.D. 904

204 N.W. 834

NORTH DAKOTA WHEAT GROWERS' ASS'N et al.

v.MOORE et al.

No. 4919.

Supreme Court of North Dakota.

June 24, 1925.

Syllabus by the Court.

In an action brought solely for the purpose of restraining the defendants, as directors of the plaintiff corporation, from holding a meeting of the directors, or taking any proceedings for the purpose of determining whether or not the directors shall remove the other plaintiff from his office as president of the corporation, where it appears, and is conceded, that no effectual steps can be taken by the defendants, even if the order appealed from be reversed, before the regular annual meeting of the stockholders of the corporation to elect new directors, will be held, or before the regular annual meeting of the directors will be held immediately following such election, by which election the body of directors may be wholly or substantially changed and the persons now acting as officers may be wholly or substantially eliminated or changed, it is held, for reasons stated in the opinion, that the questions upon this appeal have become and are moot.

Questions otherwise moot may be determined by appellate courts, where they are of great public interest, and involve the authority and power of public officials. On the record, it is held that this is not such a case.

Appeal from District Court, Cass County; Cole, Judge.

Suit by the North Dakota Wheat Growers' Association and another against R. J. Moore and others. From an order restraining defendants, as directors of plaintiff association, from calling or holding a meeting of directors or considering question whether plaintiff George E. Duis shall be ousted from his office as president of the association, defendants appeal. Appeal dismissed.U. L. Burdick and Lemke & Weaver, all of Fargo, for appellants.

Halvor L. Halvorson, of Minot, amicus curiæ.

Divet, Holt, Frame & Thorp, of Fargo, for respondents.

WOLFE, District Judge.

[1] This appeal is from an order of the district court of Cass county restraining the defendants, as directors of the plaintiff corporation, pending the determination of the action, from calling or holding a meeting of the directors, or taking other proceedings to summarily consider the question whether the personal plaintiff shall be ousted from his office as president of such corporation. The action is brought upon the theory that, in law, and especially under the law by virtue of which the plaintiff corporation is created, and because of matters contained in its charter, the directors have no right or power to oust the president from his office, or to call or hold a meeting for the purpose of considering such ouster; such matters being claimed to rest solely and exclusively with the members of the corporation, which has no capital stock. The trial court, after full hearing and careful consideration, agreed with the plaintiffs and issued the order appealed from.

The defendants, on the other hand, claim that, in law, generally the directors of a corporation have the power to oust its officers at will, unless restrained by contract; that the law under which this corporation is created does not purport to make any change in this rule; that the by-laws of the corporation expressly provide for such ouster, and the matters involved are purely internecine, and the courts will not meddle with them, except to prevent fraud, which, they say is not involved in this action. All the assignments of error go to the one...