State v. Southern Bldg. & Loan Ass'n

• Decision Date: 15 January 1902
• Citation: 132 Ala. 50,31 So. 375
• Court: Alabama Supreme Court
• Parties: STATE EX REL. JOHNSON v. SOUTHERN BUILDING & LOAN ASS'N.

31 So. 375

132 Ala. 50

STATE EX REL. JOHNSON v. SOUTHERN BUILDING & LOAN ASS'N.

Supreme Court of Alabama

January 15, 1902

Appeal from circuit court, Madison county; O. Kyle, Judge.

Quo warranto proceedings on the relation of Thomas L. Johnson and also in his own right, against the Southern Building &amp Loan Association. Judgment for defendant. Plaintiff appeals. Affirmed.

Motley Carson & Sivley, for appellant.

Milton Humes, R. W. Walker, and Lawrence Cooper, for appellee.

TYSON J.

This is an information in the nature of a quo warranto filed under sections 3417 et seq. of the Code, seeking to forfeit the charter of the Southern Building & Loan Association, a corporation organized under the general laws of the state. The petition is filed in the name of the state on the relation of Thomas L. Johnson, and by said Johnson in his own behalf. As originally framed, it alleged numerous conclusions of law and fact, without separating them into counts or otherwise designating the several causes of action. This was informal. Railroad Co. v. Dusenberry, 94 Ala. 413 10 So. 274; Railroad Co. v. Weems, 97 Ala. 270, 12 So. 186. The petition, after demurrer sustained, was twice amended, and, as amended, was separated into several counts. We need only consider it as last amended, since it contains, in what was conceived to be better form, all that was originally alleged as grounds of complaint, with the exception of the alleged failure to make returns required to be made by building and loan companies to the state auditor by section 1129 of the Code. While this ground need not be separately discussed, since it can be disposed of on general principles applicable to other counts of the petition, yet it may not be amiss to call attention to the fact that section 1130 provides a penalty for the violation complained of. State v. Real Estate Bank, 41 Am. Dec. 109. As last amended, the demurrer was sustained, and, the plaintiff declining to amend further, the petition was dismissed. This action of the court is now assigned as error.

The first count of the petition, as last amended, after stating the age and residence of the relator, and the date of the formation of the corporation with reference to the general statutes under which it was formed, charges, generally, that the corporation "carries on its business in said city, and operates and enjoys said franchises, and abuses and nonperforms the duties granted and assumed by said corporation under said franchise," etc. If grounds of forfeiture of a charter may be stated thus generally, there was no necessity of any attempt at any further or more particular statements in the later counts, for this was certainly broad enough to cover any and every dereliction of duty and abuse of franchises. From the very nature of the proceeding,--one involving the life of the corporation,--it is evident that no such general statement will suffice. It fails in the prime purpose of written pleadings,--the information to the defendant as to the charges it is to meet and defend against. Code, §§ 3285, 3428; note to State v. Atchison & N. R. Co. (Neb.) 38 N.W. 43, 8 Am. St. Rep. 181.

In the second count the complaint is that the corporation has enacted a by-law which contravenes the provisions of section 1135 of the Code. It is alleged, in substance, that under the by-law the company may hold the borrowing member after default, and when it forecloses the mortgage he has given, still bound for premiums, interest, fines, and dues, and fail to give him credit for payments made as required by said section. Of what member this particular exaction was ever made, or whether of all members in default, there is no averment. It is rather a statement of the general policy of the company, and of its assumption of a right to proceed in a manner violative of the statute, than of any actual, specific statement of such violation. It is quite clear that the facts are not stated with the precision required under general rules of pleading, to say nothing of the strictness required in proceedings of this character.

It is charged in the third count that the corporation has been guilty of a violation of section 1136 of the Code, in that in its "January, 1900, edition of its by-laws," it failed to set forth "a definite withdrawal value of all shares of stock in said corporation upon which all dues and charges for one year or more have been paid, at not less than eight per cent. per annum thereon for the average time such dues have been paid, less fines and penalties and a proportionate share of losses and expenses sustained." It is not seen why these facts should, under the statute have been made to appear in its "January, 1900, edition of its by-laws." True, it is averred the corporation was acting under "the by-laws above referred to," but still no penalty was incurred for a failure to include the stated facts in any edition of those by-laws. Moreover, it was not the duty of the corporation to include a statement of all the facts postulated in the count in its by-laws. The pleader complains that certain facts were not so included, which are mentioned in the statute as a basis of calculation by which the facts which are to be included may be ascertained; as, for instance, the calculation of interest at...