Termini v. McCormick

• Decision Date: 05 June 1945
• Docket Number: 37633.
• Citation: 23 So.2d 52,208 La. 221
• Court: Louisiana Supreme Court
• Parties: TERMINI et al. v. McCORMICK.

23 So.2d 52

208 La. 221

TERMINI et al. v. McCORMICK.

No. 37633.

Supreme Court of Louisiana

June 5, 1945

Rehearing Denied June 29, 1945.

Appeal from Nineteenth Judicial District Court Parish of East Baton Rouge; G. Caldwell Herget, Judge.

Thomas E. Furlow, of New Orleans, for appellants.

W Frank Gladney, of Baton Rouge, for defendant-appellee.

HAMITER Justice.

In their original petition of this action plaintiffs, Frank Termini and his wife, alleged that they are the owners of twenty-eight shares of the capital stock of the Frank Termini Tile Company, Inc., a Louisiana corporation domiciled in the Parish of East Baton Rouge; that on December 20, 1940, by a resolution duly adopted, the holders of more than two-thirds of the outstanding shares of the capital stock authorized the liquidation of said corporation out of court; that on January 13, 1941, Joseph A. McCormick was appointed liquidator of the corporation by the Nineteenth District Court of East Baton Rouge Parish in cause No 16,313, and on the following day he furnished the required bond and received his letters of authority; and that on July 16, 1942, pursuant to the liquidator's petition in which complete liquidation of the corporation was alleged, judgment was rendered and signed discharging the liquidator, relieving him of further liability, cancelling his bond, and dissolving the corporation.

Additionally, in the original petition, plaintiffs made various and sundry allegations, which will be hereinafter discussed, and prayed that, after the citing of the liquidator, the court decree the setting aside and annullment of the judgment rendered in cause No. 16,313 which discharged the liquidator and dissolved the corporation, Frank Termini Tile Company, Inc.

In a supplemental petition there was an elaboration of some of the allegations originally made, and, further, plaintiffs alleged that since the filing of the suit the Secretary of State had issued his certificate of dissolution of the corporation. The prayer of this pleading was that the Secretary of State be made a party defendant and that there be judgment, in addition to that previously requested, annulling the mentioned certificate of dissolution.

Both the Secretary of State and the liquidator filed answers.

Later, exceptions of no cause and no right of action, an exception of misjoinder of parties defendant, and a motion for judgment on the pleadings, were tendered by the liquidator's counsel, in some of which the Secretary of State, as well as the liquidator, was named as an exceptor or mover. With respect to the Secretary of State, however, the filing of these pleadings was subsequently found to be unauthorized, and on a rule issue at plaintiffs' request the court ordered them stricken from the record in so far as they concerned that official.

When the exceptions of no right and no cause of action came on for hearing the liquidator's counsel offered to introduce evidence in support of them. To the offering plaintiffs' counsel objected on the ground that under the law and jurisprudence of this state such exceptions are to be heard and considered only on the allegations of the petition and the attached documents. The court sustained the objection as to the exception of no cause of action, but ruled that as to the exception of no right of action the introduction of evidence is permissible. Whereupon exceptor's counsel offered the entire record of the liquidation cause, as well as the records in four suits instituted by the liquidator, and he then proceeded to elicit from plaintiff Frank Termini, under cross examination, testimony to the effect that such plaintiff was aware of the conducting of the liquidation proceedings and had employed counsel to represent him therein. The court received the evidence for the restricted purpose of considering the exception of no right of action.

In support of the judgment that he later rendered the trial judge assigned written reasons, they being in part as follows:

'Over the objection of counsel for the plaintiffs the defendant was permitted to take testimony on the exception of no right of action, which testimony is in the record. As will be seen from plaintiffs allegations above referred to in paragraph No. 17, and by an examination of the proceedings in suit No. 16,313, in re: Liquidation of Frank Termini Tile Company, Inc., both the plaintiffs in this suit signed the resolution appointing the said Joseph A. McCormick liquidator of said corporation, which said resolution is offered as exceptor's exhibit No. 7. In the testimony of Frank Termini it was shown that he had employed counsel to represent him in the proceedings.

'The liquidation was proceeded with, the account of the liquidator advertised and no objection whatsoever was made by either of the plaintiffs in this suit.

'Under the circumstances it is my opinion that the plaintiffs, who had full knowledge of and actually participated in the liquidation of the corporation and who failed to file any opposition in said liquidation, can not be heard to come into court after the liquidation has been closed, the liquidator discharged, and without charging fraud, bring such a suit as is done here.

'Counsel for the plaintiffs suggested to the Court that the exceptions be referred to the merits. Under the circumstances I can see no useful purpose in doing so, for on the trial of the case I would be compelled to sustain objections to the testimony offered by plaintiffs in support of their petition.

'Therefore, for these reasons, judgment will be signed herein sustaining the exceptions of no cause or right of action and dismissing plaintiffs' suit at their costs.'

From the formal judgment dismissing their suit, plaintiffs are appealing.

In this court appellants' counsel insists that the trial judge erred in receiving evidence under the exception of no right of action; that the allegations of the petition, which are to be accepted as true for the purpose of considering the exceptions involved herein, disclose both a right and a cause of action; and that the evidence adduced, even if admissible, does not support the judgment rendered.

Whether the trial judge ruled correctly as to the admissibility of evidence in connection with the exception of no right of action is a question we need not decide. Even if that evidence be accepted and considered it does not contradict the allegations of the petition that plaintiffs are the owners of twenty-eight shares of stock of the corporation; it fails to show that those persons are without interest in the outcome of this litigation.

A distinction between the exception of no right of action and the exception of no cause of action is recognized in our jurisprudence. The former serves to question the right of a plaintiff to maintain his suit, to dispute the interest of that litigant in the...