State ex rel. De Julvecourt v. Panamerican Co.
| Decision Date | 17 July 1904 |
| Citation | 61 A. 398,21 Del. 391 |
| Court | Delaware Superior Court |
| Parties | STATE ex rel. DE JULVECOURT v. PANAMERICAN CO. et al |
Anthony Higgins and Horace G. Eastburn, for relator.
David T. Marvel and Josiah Marvel, for respondents.
Argued before LORE, C.J., and PENNEWILL, J.
The state of Delaware, upon the relation of Count Henri Courcier de Julvecourt, upon March 8th last, filed, in this court a petition for a rule to show cause why a writ of peremptory mandamus should not be issued, requiring the Pan-American Company, a corporation of the state of Delaware, and Ralph C Lupton, its resident director, to permit the petitioner to inspect and make copies of sundry books, papers, and records of said company. A writ of alternative mandamus was subsequently issued, and a motion to quash same refused whereupon the respondents filed their separate returns to the alternative writ. A motion has been made by the relator to quash the returns on the ground that they are uncertain, argumentative, ambiguous, evasive, inconsistent, immaterial, and insufficient. The question now before the court, therefore, goes to the sufficiency of said returns. Certain material allegations of the alternative writ are admitted by the returns, and certain others, while not expressly admitted, are not specifically denied. The relator contends that the respondents have failed to deny specifically any of the material allegations of the alternative writ, and for that reason the returns should be quashed.
It is contended by Ralph C. Lupton, one of the respondents, that the peremptory writ should not issue against him, because he has distinctly denied in his return that the books and papers demanded are now or have ever been in his possession, custody, or control. It is a well-settled rule in the law of mandamus that the peremptory writ should be issued against the person or persons who have the power to perform the duty commanded, but it is also well settled, and in this state, that the joining of some other party will not invalidate the writ. Bay State Gas Co. and Addicks v. Content & Co., 4 Pennewill, 238, 56 A. 1114; Swift v. Richardson, 7 Houst. 338, 32 A. 143, 40 Am.St.Rep. 127; State v. Leon, 66 Wis. 199, 28 N.W. 140; People ex rel. Muyr v. Throop, 12 Wend.(N.Y.) 185. Ralph C. Lupton may not be the custodian of the books and papers in question, and may not be a necessary party in this action, but the fact that he is joined will not prevent the issuance of the writ. He is the resident director of the defendant company, and the only representative of the company in this state. He has not expressly denied his power to perform the duty prayed for, and it does not seem impossible that, if the peremptory writ should be issued, he would then be able to comply with its requirements.
The Pan-American Company, the other respondent, contends that the writ should not be issued against it because. (1) under the charter and by-laws of the company, a stockholder has no right to examine its books and papers unless he is the owner of 5,000 shares of capital stock, and it appears from the petition that the relator is not the owner of so many shares; and (2) because the undenied allegations of the alternative writ do not establish such a case as would warrant the court in issuing the peremptory writ.
It may be a sufficient answer to the first objection to say that under a by-law of the company in existence at the time of the issuance of the alternative writ, a stockholder having 100 shares of stock had the right to examine the books; and, although the by-law may have been since amended, we are not compelled to determine the effect of the amendment upon the rights of the relator, because the defendant company has not in its return specifically denied the existence of the earlier by-law. There is no more well settled principle of law than this: That an argumentative return in...
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