Stevens v. South Ogden Land, Building & Improvement Co.

• Decision Date: 09 December 1896
• Docket Number: 736
• Citation: 47 P. 81,14 Utah 232
• Parties: SIDNEY STEVENS ET AL., APPELLANTS, v. SOUTH OGDEN LAND, BUILDING & IMPROVEMENT COMPANY ET AL., RESPONDENTS
• Court: Utah Supreme Court

47 P. 81

14 Utah 232

SIDNEY STEVENS ET AL., APPELLANTS, v. SOUTH OGDEN LAND, BUILDING & IMPROVEMENT COMPANY ET AL., RESPONDENTS

No. 736

Supreme Court of Utah

December 9, 1896

Appeal from the Second district court, Weber county, Hon. H. H Ralapp, Judge.

Action by Sidney Stevens and others against the South Ogden Land Building & Improvement Company and others, to set aside conveyances and for the appointment of a receiver. From a judgment sustaining the demurrer to the complaint, plaintiffs appeal.

L. R Rhodes, for appellants.

Evans &amp Rogers, and A. G. Horn, for respondents:

Sec. 3220 Compiled Laws '88, provides that certain causes of action may be united in the same complaint, but they all must belong to one only of certain classes, and must affect all the parties to the action and must be separately stated. The California code is the same. III Deering's Annotated Code, sec. 427 and note.

If the pleading does not conform to this requirement a demurrer will lie. Nev. Canal Co. v. Kidd, 43 Cal. 180; White v. Cox, 46 Cal. 169.

This ground of demurrer is well taken. Bryce Gray v. Rothschild, 112 N.Y. 668; Johnson v. Kirby, 65 Cal. 482.

We respectfully contend that as each defendant company is a separate and distinct legal entity, and has no interest in the controversies relating to the other defendant companies, there was a misjoinder of parties defendant as set out in the demurrer. Bliss Code Plead., § 110 and 110a; Story Eq. Plead., § 271 to 278; Preshaw v. Dee, 6 Utah 360; Bryce Gray v. Rothschild, 112 N.Y. 668.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

The court below having sustained a demurrer to the complaint, and plaintiffs having failed to amend, the court entered a judgment dismissing the action, from which the plaintiffs have taken this appeal.

The complaint contains numerous allegations, among which are the following: That the South Ogden Land, Building & Improvement Company was incorporated on the 18th day of April, 1892, with authority to buy and sell real estate, build roads, parks hotels, railways, boulevards, pleasure resorts, and do a general contracting and building business, to construct water ditches, canals, aqueducts, reservoirs, and lay and construct water works, and to build power dams for propelling machinery, and everything necessarily incident to the transaction of such business; that the business was required to be conducted according to the articles of incorporation, and its by-laws; that the number of shares in the company were 5,000, of which Sidney Stevens subscribed for 1,646 shares, Sidney O. and Frank J. Stevens 10 shares each, Solomon C. and William J. Stephens 1,666 shares each, and David Kay 2 shares; that the capital stock of the corporation consisted of numerous lots and tracts of real estate, described in the complaint; that it was further provided that Sidney Stevens, William J. Stephens, Solomon C. Stephens, Sidney O. Stevens, Frank J. Stevens, and David Kay should be directors until the first Monday in May, 1893, and until the election and qualification of their successors; that Sidney Stevens should be president, Sidney O. Stevens secretary, Frank J. Stevens treasurer, and William J. Stephens vice president. It was further alleged that the South Ogden Mercantile Company, on the same day, was also incorporated; that the object of this incorporation was a wholesale and retail mercantile business, and the acquisition of such land as might be essential to the business; that the capital stock of the corporation was divided into 250 shares, of which Sidney Stevens subscribed for 73 1-3 shares, Frank J. and Sidney O. Stevens 5 shares each, William J. and Solomon G. Stephens 83 1-3 shares each; that the officers of the corporation consisted of five directors, president, vice president, secretary, and treasurer; that, until the meeting of the stockholders on the first Wednesday in May, 1893, and the election and qualification of officers thereto, the board of directors should be Sidney Stevens, Solomon C. and W. J. Stephens, and Frank J. and Sidney O. Stevens; that Sidney Stevens should be president, William J. Stephens vice president, Sidney O. Stevens secretary, and Frank J. Stevens treasurer; that the capital stock consisted of real estate, described in the complaint. The plaintiffs further alleged that the South Ogden Clay & Manufacturing Company was also incorporated on the same day; that the purpose of the corporation was the manufacture of brick, tiling, sewer pipe, pottery, the erection and operation of flouring mills, the manufacturing of tinware, the erection and operation of woolen mills, manufacture of wagons and other vehicles and farming implements, and the erection and operation of iron foundries, glass factories, and manufacture of wooden wares; that the capital stock of this corporation was divided into 5,000 shares, of which Solomon C. and W. J. Stephens subscribed 1,666 shares each, Sidney O. Stevens 1,661 shares, and Frank J. and Sidney Stevens 2 shares each; that the officers of the corporation consisted of a board of five directors, a president, vice president, secretary, and treasurer; that until the meeting of the stockholders on the first Tuesday in May, 1893, and the election and qualification of officers, the directors should be Solomon C. and William J. Stephens, and Sidney O., Frank J., and Sidney Stevens; that said Solomon C. Stephens should be president, Sidney Stevens vice president, Sidney O. Stevens secretary, and Frank J. Stevens treasurer; that the capital stock consisted of all the title and interest of William J. Stephens and Solomon C. Stephens to and in a certain option contract for certain lands described in the complaint. Plaintiffs also alleged that, in May, 1892, the South Ogden Water Company was incorporated, with authority to purchase water, to construct waterworks for South Ogden and a portion of Ogden City, and also to acquire and hold the necessary real and personal property, and to sell the same when necessary or desirable; that its capital stock was divided into 5,000 shares, of which Sidney Stevens subscribed for 1,646 shares, Solomon C. and William J. Stephens 1,666 shares each, Sidney O. and Frank J. Stevens 10 shares each, and David Kay 2 shares; that the capital stock of this corporation consisted of the right to the waters of certain creeks and reservoirs mentioned in the complaint. The plaintiffs further alleged that the four corporations named were organized to prosecute one enterprise, and that they were to be, in effect, subject to one management, and that their business became so intermingled and connected that it was necessary to make them all parties to the same action; that all of the subscribers still own their stock, with the exception of one share assigned to John J. Hill, and a few shares assigned to Paul Beus. Plaintiffs further allege that Sidney Stevens turned over to the South Ogden Mercantile Company, soon after its organization, in payment for his stock, a stock of goods of the value of $ 14,000, and that he placed to the credit of the South Ogden Land, Building & Improvement Company $ 10,000 in payment for stock issued; that, after the organization of said corporations, ...