State ex rel. Padgett v. Foulkes
| Decision Date | 15 April 1884 |
| Docket Number | 11,437 |
| Citation | 94 Ind. 493 |
| Parties | The State, ex rel. Padgett, Prosecuting Attorney, v. Foulkes et al |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
Judgment affirmed.
A. J Padgett, H. S. Cauthorn, J. M. Boyle and O. F. Baker, for appellant.
W. H De Wolf, S. N. Chambers, F. W. Viehe, R. G. Evans, G. G Reily, W. C. Niblack and J. C. Denny, for appellees.
Elliott, J. Niblack, J., did not take any part in the decision of this cause.
It has long been settled that where an amended complaint is filed the original no longer remains as a pleading, and that rulings upon it are made immaterial by the amendment. The record in this case shows that the ruling on the motion to strike out applied solely to the original complaint, and as that was superseded by amendment, that ruling becomes wholly immaterial. The only ruling in the case, therefore, which is properly before us is that upon the demurrer to the information, and to that we direct our attention.
The information is one in a proceeding in the nature of a quo warranto, and charges that the appellees have assumed to create a corporation under the name of the Vincennes and Ohio River Railroad Company, have assumed to exercise corporate powers, and claim that the pretended corporation was organized under the general laws providing for the incorporation of railroad companies.
The first specification in the information charges that a public meeting was held in the city of Vincennes, on the 6th of February, 1883, for the purpose of organizing the corporation; that a draft of articles of association was then presented and signatures called for; that the name of the corporation was not stated, nor was the amount of the capital stock, nor the termini of the railroad given; that the draft of the articles was, at that meeting, blank as to these matters; that it was agreed that such blanks should not then be filled but should afterwards be filled; that, with this understanding, divers persons signed the instrument; that at a subsequent meeting the blanks in the instrument were filled without the knowledge or consent of those who had signed at the previous meeting, and that other persons then signed, but the entire capital stock purporting to have been taken was only $ 50,150, and there was no ratification by those who had previously signed; that the instrument was then filed. It is also averred that the articles had not the amount of stock subscribed required by law; that the persons named as directors were not stockholders. The substance of the second specification is that defective articles of association were filed with the secretary of state, on the 3d day of March, 1883 (but wherein they were defective is not stated), and that in July following other articles of association were filed, purporting to be original articles of association, and that the date of filing was not truly stated, but was given as the 3d of March, 1883, whereas they were filed in July or August. The third specification charges that the articles were never filed. The fourth specification charges that stock to the amount of $ 50,000 had not been subscribed when the articles of association were filed; that no directors were elected, and that the subscribers did not state their respective places of residence or the shares of stock subscribed respectively. It is charged in the fifth specification that the subscriptions to the capital stock of the corporation were not made in good faith, but that those who did subscribe the articles in good faith, not being able to secure the requisite amount, the amount of $ 47,000 was subscribed by John R. Long, a nonresident of the State and wholly insolvent; that Long made his subscription solely for the purpose of enabling the appellees to incorporate, and that they did not intend to rely upon the subscriptions to the capital stock of the alleged corporation, but upon appropriations from public corporations along the line of the proposed railroad.
The charges of the first specification are nullified by those of the second. The statements of the latter specification show that two articles of association were executed and filed, and if the last was properly executed, and this is not denied, and filed, then the improper or defective execution of the first is not material. The question is not whether the first articles were properly executed, but whether such steps had been taken as entitled the association to exercise corporate powers, at the time the information was filed. If there was a legal corporation at that time, then, no matter how many mistakes had occurred prior to that time, or how great the irregularities in the preparation of the articles of association, the relator has no right to maintain this information.
The allegation that the secretary of state antedated the filing of the articles of association does not make this specification good. If that officer had violated his duty in that respect, still the legality of the acts of the corporators would not be injuriously affected. The State can not take rights from a corporation because of a wrong committed by one of its own officers. But, aside from this, the allegation is insufficient for another reason, for the endorsement of the date of filing is not the material thing, the act of depositing the paper with the proper officer is the essential element of the act of filing. Naylor v. Moody, 2 Blackf. 247; Engleman v. State, 2 Ind. 91; Johnson v. Crawfordsville, etc., R. R. Co., 11 Ind. 280; Miller v. O'Reilly, 84 Ind. 168.
The appellant contends that the specifications, although set forth in one and the same paragraph, are separate and distinct causes of action, and that each is to be considered without reference to the others. We can not assent to this view. There is but one cause of action set forth in the pleading, and if that is a good one the complaint is sufficient; if not, the complaint is insufficient. If the statements of one part of a single paragraph of the complaint are shown to be untrue or to be of no force by another part then the whole paragraph must fall. For example, if a complaint consisting of a single paragraph should aver in one place that articles of association were not filed, and in another aver that they were filed, the complaint would necessarily be bad,...
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