State v. Silver King Consol. Mining Co. of Utah

Citation37 Utah 62,106 P. 520
Decision Date06 January 1910
Docket Number2051
CourtSupreme Court of Utah
PartiesSTATE ex rel. BRANDL v. SILVER KING CONSOLIDATED MINING COMPANY OF UTAH et al

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Application by the State, on the relation of Joseph Brandl, for a writ of mandate to the Silver King Consolidated Mining Company of Utah, a corporation, and G. W. Browning, secretary.

From a judgment for insufficient relief, relator appeals.

REVERSED.

Snyder & Snyder for appellant.

APPELLANT'S POINTS.

It is no longer the subject of doubt in this state that the corporate books and papers of any incorporation may be examined by a stockholder either in person or through an agent for all lawful and proper purposes, and certainly for the purposes shown in this application. (Compiled Laws of Utah, 1907, section 329; Harkness v. Guthrie, 27 Utah 248, 199 U.S. 148; Clawson v. Clayton, 33 Utah 266; Cobb v. Lagarde, 129 Ala. 488, 30th So. 326; Mitchell v. Rubber Reclamation Co., 24 A. 407; Weihenmayer v. Bitner, 42 A. 245, 88 Md. 325; Stone v. Kellogg, 46 M. E. 222, 165 Ill. 192; Foster v. White, 86 Ala. 457, 6 So. 89 Cincinnati Volksblatt Brewing Co. v. Hoffmeister, 56 N.E. 1033; State ex rel. Weinberg v. Pacific Brewing &amp Malting Co., 21 Washington 451; People v. Goldstein, 56 N.Y.S. 306; 2 Clark & Marshall, p. 1649, 50, note; Stone v. Kellogg, 165 Ill. 204, 46 N.E. 222; In re Steinway, 45 L. R. A., p.462,et seq.; Note bottom page 462, 463, 464; Swift v. State ex rel. Richardson, 6 A. 856.)

Henderson, Pierce, Critchlow & Barrette and Howat & Macmillan for respondents.

FRICK, J. STRAUP, C. J., and McCARTHY, J., concur.

OPINION

FRICK, J.

Appellant, as a stockholder of the respondent Silver King Consolidated Mining Company of Utah, made application to the district court of Salt Lake County for a writ of mandate requiring said company and one G. W. Browning, its secretary, to permit appellant, through an expert accountant, to examine the books of said company for the purpose of ascertaining therefrom "the amount of issued stock of said corporation, the names of the stockholders, and the financial condition of said corporation." The court issued an alternative writ, to which the company aforesaid and Mr. Browning, hereinafter designated respondents, filed their answer, in which they contested the right of appellant to inspect the books of said corporation. Respondents, however, in their answer, admitted that appellant demanded an inspection of the books at the time and for the purposes alleged, but they averred that the reasons stated by him were not the only reasons for which he desired to inspect the corporate books. In view that the court found that the averments in the answer were not sustained by the evidence, we shall not refer to the answer further.

Upon the hearing the court found the facts, in substance, as follows: That said Silver King Consolidated Mining Company of Utah is a corporation incorporated under the laws of Utah; that appellant is a bona fide stockholder of record of said corporation; that appellant had duly applied for and had requested said respondents during business hours to permit him, through an accountant, to examine the books and records of said corporation; and that said respondents refused such request, and refused appellant the right to examine said books and records. The fifth finding of fact, and the only one which is questioned by appellant, is as follows: "That the relator has disclaimed any desire to inspect the stock books of said defendant corporation or to obtain any information as to who said stockholders were." Then follows the finding that "the allegations of defendants' answer are not sustained by the evidence." Upon these findings, the court made conclusions of law by which he found that appellant was entitled to a peremptory writ of mandate "directing and compelling the defendants to permit relator, by a competent and proper agent duly appointed, to inspect all the books of account, vouchers, and records of said defendant corporation except so far as the same may disclose the names of the stockholders of said defendant corporation." (Italics ours.) Judgment was entered in accordance with the foregoing findings and conclusions. The record also discloses that after said judgment was rendered appellant, through his accountant, attempted to inspect the "books of account, vouchers and records," and in doing so a certain voucher for fourteen thousand seven hundred dollars and fifteen cents was withheld from the accountant for the reason that the voucher "would disclose the names of stockholders." Appellant then, by motion, applied to the court for a modification of the writ so as to permit him to "examine the sources of receipts and all disbursements, . . . even though the same may disclose the name of a stockholder." The court refused to make the modification, and denied the motion. The appeal is from the original judgment.

Counsel for appellant have assigned a large number of errors, but, as we view the matter, the whole case turns on whether the fifth finding of fact and the conclusion of law, both of which we have given in full, and both of which are attacked by appellant, can be sustained. Counsel for appellant earnestly insist that the fifth finding of fact is contrary to, and is not supported by the evidence. This so-called finding of fact, as we read the record, is not responsive to any issue in the case. Appellant in his application for the writ asked the right to make an examination of the corporate books to ascertain, among other things, "the names of the stockholders." It is true that on cross-examination he in substance, testified that he was not asking for a list of the stockholders, and that he had not asked the secretary of the corporation for such a list. When, however, his attention was directed to what he had asked for in his application, he at once said, "I remember now," and at once corrected his former testimony by stating that he did ask for a list of its stockholders, and that he did "want to find out who were the stockholders." He followed these statements by giving his reasons for wanting to know who the stockholders were. All these statements were made on cross-examination, and were made within a few minutes of time. It is very clear that the witness when first asked about the list of stockholders had forgotten about the matter, and that, when his attention was directed to his application, he then recalled the fact, and then stated that he desired a list of the stockholders, and gave his reasons therefor. In view of the state of the record, it is not easy to understand how the court arrived at the conclusion that the appellant "has disclaimed any...

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