State ex rel. Aultman v. Ice
| Decision Date | 12 January 1915 |
| Docket Number | 2152. |
| Citation | 84 S.E. 181,75 W.Va. 476 |
| Parties | STATE EX REL. AULTMAN v. ICE ET AL. |
| Court | West Virginia Supreme Court |
Submitted November 24, 1914.
Syllabus by the Court.
A clerical error in the date of the issuance of a mandamus nisi may be cured by an amendment.
An alternative writ of mandamus need not recite the filing of a petition for award thereof.
In a proceeding to compel the officers of a private corporation to allow one of its directors to inspect its books, papers records, and correspondence the corporation itself is not a necessary party.
An alternative writ of mandamus sued out for such purpose is not vitiated by recital of the relator's dual status of stockholder and director and failure formally to claim the right of inspection in one of the two capacities indicated by the recitals.
A motion for the award of a peremptory writ of mandamus, unaccompanied by a replication to the return to the alternative writ, is equivalent to a demurrer to the return.
That the inspection sought by a director may disclose a right of action in him against the corporation or some of its agents does not preclude his right to inspect the books, papers, and records of the corporation.
An averment, in general terms, that respondents are advised that one of the purposes of the relator, in seeking such inspection, is to enable him to obtain knowledge of the corporate business for communication to rival or competing concerns, unsupported by any allegation of facts, indicating the source of such information, the identity of such rival concerns or connection of the relator therewith, is too indefinite, and therefore insufficient as a defense to the writ.
A director of a corporation is entitled to have the assistance of his attorney or agent, in the exercise of his right to inspect its books, papers, and records, provided the latter has no interest adverse to the corporation, rendering his employment therein improper.
Error to Circuit Court, Marion County.
Mandamus by the State, on the relation of Thomas G. Aultman, against C. F. Ice, president, etc., and another. Judgment for relator, and defendants bring error. Affirmed.
Geo. M Alexander, Charles Powell, and A. J. Colborn, all of Fairmont, for plaintiffs in error.
Charles B. Johnson, of Clarksburg, for defendant in error.
The judgment of the intermediate court of Marion county, affirmed by the circuit court of that county and brought here for review, awarded a peremptory writ of mandamus, commanding the respondents, president and secretary and treasurer of a corporation known as the Fairmont Box Car Loader Company, to permit the relator, a stockholder in the company and a director thereof, to inspect the records books, papers, contracts, and other documents belonging to it and in their custody, and allow him the privilege of assistance by his agent in so doing.
Waged with vigor, skill, and ability on both sides, the contest developed, in the court of its initiation, several questions of procedure and reliance, in the appellate courts, upon technical grounds for both affirmance and reversal.
One exception is based on an adverse ruling on a motion to quash the alternative writ, because: (1) Its date was two days earlier than that of the order awarding it; (2) it did not show the filing of a petition for issuance thereof; (3) the corporation was not made a party; and (4) although averring the relator to be both a stockholder and a director, it failed to set forth the capacity in which he desired relief.
An amendment, the propriety of which seems to be clear beyond doubt, cured the first one of these alleged defects. It was shown by affidavits to have been a mere misprision of the clerk of the court.
No recital of the petition was necessary. The writ itself constitutes the declaration in this form of action. Town of Mason v. Railroad Co., 51 W.Va. 183, 41 S.E. 418; Fisher v. Charleston, 17 W.Va. 628. The petition is, in law, a mere memorandum or affidavit, supplying the materials for the recitals of fact in the mandamus nisi.
No corporate interest in the litigation, not adequately represented by the governing officers proceeded against, is perceived. Through them, the corporation has notice, and they act for it, just as effectually as if it were a formal party. The situation differs radically from that in which the interests of a person having no notice and not in any sense represented are to be affected, as in Armstrong v. County Court, 15 W.Va. 190.
The remaining ground of the motion is likewise untenable. Under some circumstances, the relator has admitted right of inspection in either and both capacities, and the same relief would be granted in either case. If the facts set forth in addition to the averment of his character as a stockholder do not confer such right upon him as a stockholder, but do give it to him as a director the averment of his ownership of stock can be treated as harmless surplusage. Sprinkle v. Duty, 54 W.Va. 559, 46 S.E. 557. If, on the contrary, he has the right in both capacities, relief could not be denied him because he has unnecessarily shown himself to be doubly entitled to it.
Recital here of the contents of the pleadings, or even of the substance thereof, would not materially aid in the solution of the questions raised. The writ, return, and amended return all cover unnecessary ground and partake largely of the character of the pleadings in an equity suit. Right of personal inspection is not denied. On the contrary, it is distinctly admitted and had been formally invited. Only the alleged right of inspection by an agent or attorney is denied, and this denial is supplemented by the assertion of impropriety in the purpose for which the inspection is demanded. A few days before the writ was obtained, the relator caused a...
To continue reading
Request your trial