State ex rel. McCalla v. Burnsville Turnpike Co.

• Decision Date: 07 October 1884
• Docket Number: 10,850
• Citation: 97 Ind. 416
• Parties: The State, ex rel. McCalla, v. The Burnsville Turnpike Company et al
• Court: Indiana Supreme Court

97 Ind. 416

The State, ex rel. McCalla, v. The Burnsville Turnpike Company et al

No. 10,850

Supreme Court of Indiana

October 7, 1884

From the Bartholomew Circuit Court.

The judgment is reversed, with costs, and the cause remanded for further proceeding not inconsistent with this opinion.

J. C Orr, for appellant.

N. R Keyes, for appellees.

OPINION

Niblack J.

This was an application in the name of the State, and on the relation of Charles McCalla, for an alternative writ of mandate against the Burnsville Turnpike Company, Joel S Davis, William H. Hunter and John H. Reddenbaugh, Davis being the president, Hunter the secretary, and Reddenbaugh the treasurer, of that company.

The complaint averred that the defendant, the Burnsville Turnpike Company, was a corporation organized under the laws of Indiana, and engaged in operating a turnpike road in Bartholomew county; that it was the duty of the defendant, the secretary of said company, to collect the moneys due said company from the shareholders thereof, to issue certificates of stock to the shareholders, and to transfer on the books of said company, in accordance with the by-laws thereof, any and all shares of stock to the name and credit of the actual and lawful owner thereof on the surrender of the certificate of said stock; that in July, 1877, one Isaac Davis subscribed for four shares of the capital stock of said corporation at $ 50 per share, on the terms offered by said company to wit: Said Davis as such subscriber was required to pay for said four shares of stock in five instalments of $ 40 each, the first instalment to be paid in cash at time of subscription, and the remaining instalments to be paid in one, two, three and four years from time of subscription; that the said Isaac Davis, after having paid the first instalment, died, and his widow, Nancy E. Davis, took said stock from his estate; that on August 13th, 1879, the second and third of the instalments on said shares being due and unpaid, the plaintiff's relator, at the request of Nancy E. Davis, the then owner, paid the instalments then due, and said Nancy E. Davis executed her notes for the remaining instalments, on which the relator became surety; that the shares were then transferred to her, said Nancy E. Davis, and she received a certificate thereof; that thereafter it was agreed between said Nancy E. Davis and the relator that the relator should pay said Nancy $ 40 in cash and assume the payment of her notes to the company and she would assign and transfer the shares and the certificate thereof to relator; that said relator paid said Nancy the $ 40, and she transferred and assigned and delivered to him the said shares and the certificate thereof, and that relator paid the first of the notes which he assumed to pay when it became due; that the other note which relator assumed to pay was not yet due, but he was able and willing and ready to pay it when due; that the relator is the legal and equitable owner of said shares, and in the rightful possession of the certificate thereof, and entitled to have the said shares transferred to him on the books of said corporation; that relator on the 10th day of March, 1881, in accordance with the by-laws of said company and requirements of said certificate of said shares, offered to and did surrender to the said company and its officer, the secretary, and thereupon demanded of said officers of said company and the said secretary in particular that said shares be transferred on the books of said corporation to the name of relator, but said officers and said secretary and each of them refused and still refuse to transfer said shares to relator on said company's books, to relator's great injury. Wherefore plaintiff prayed an alternative writ of mandate commanding the said Burnsville Turnpike Company, and the said officers thereof, and said secretary in particular, to perform said acts of transfer of said stock on the books of said corporation to this relator, so wrongfully omitted and refused as aforesaid, or to show cause why they should not be compelled to perform the same by a peremptory writ, and that plaintiff have all other relief in this behalf necessary.

An alternative writ was accordingly issued, to which the defendants made return in three paragraphs.

The first paragraph was held to be sufficient upon demurrer, but demurrers were severally sustained to the second and third paragraphs.

The first paragraph of the return for answer charged that it was agreed between McCalla, the relator, and the above named Nancy E. Davis, that said McCalla should advance the money necessary to pay off the indebtedness against the stock and hold the certificate thereof, and when the money paid on the stock by said McCalla should be refunded to him, he should return the certificate to said Nancy; that said McCalla advanced the money, and said Nancy delivered to him the certificate as security for the advancement; that the stock remained on the books of the company in the name of said Nancy E. Davis, and she performed the functions of a stockholder in relation...