The Carmel Natural Gas and Improvement Company v. Small

• Citation: 47 N.E. 11,150 Ind. 427
• Decision Date: 14 May 1897
• Docket Number: 18,106
• Parties: The Carmel Natural Gas and Improvement Company v. Small et al
• Court: Supreme Court of Indiana

47 N.E. 11

150 Ind. 427

The Carmel Natural Gas and Improvement Company v. Small et al

No. 18,106

Supreme Court of Indiana

May 14, 1897

Rehearing Denied May 17, 1898, Reported at: 150 Ind. 427 at 431.

From the Hamilton Circuit Court.

Affirmed.

Frank E. Gavin, Charles F. Coffin, Theo. P. Davis, L. J. Patty S.D. Stuart and Robert Graham, for appellant.

Roberts & Vestal and Fertig & Alexander, for appellees.

OPINION

McCabe, J.

The appellant sued the appellees to enjoin them from interfering with the plaintiff's business, or collecting any of its moneys. The appellees answered, leading to issues of fact, a trial of which resulted in a general finding by the court for the defendants, upon which the court rendered judgment that the plaintiff take nothing by its complaint. The court overruled appellant's motion for a new trial, having previously overruled the plaintiff's demurrer for want of sufficient facts to the second and third paragraphs of the defendant's answer. These rulings are assigned for error. The plaintiff alleges that it is a corporation, duly organized under the laws of the State of Indiana, resident in the county of Hamilton, having a regularly chosen and elected board of directors, of which John A. Thomas is president, and Addison Newlin is secretary and treasurer, and is engaged in the business, in its corporate name of The Carmel Natural Gas and Improvement Company, of drilling wells for and supplying gas to the citizens of Carmel and vicinity, in said county. The balance of the complaint and the two affirmative answers show that the stockholders of the corporation have become divided into two factions, both factions having held at the same time rival meetings of stockholders, each meeting having elected directors for the corporation, each of which sets of directors elected different presidents, secretaries, and treasurers for said corporation. A number of very interesting questions are involved, to a discussion of which the elaborate and able briefs on both sides have been devoted. If these questions are decided one way, or even one of them, then the election of directors by the stockholders adhering to the defendants was illegal and invalid, calling for a finding and a proper judgment against such defendants, otherwise the said election was legal and valid, calling for a finding and a proper judgment in favor of said defendants. In short, the whole record, evidence, and briefs of counsel on both sides show that the sole controverted question to be determined by the suit was and is the legality and validity of the election of directors for said corporation by that part of the stockholders adhering to the appellees, which directors are assuming to act as the lawfully elected directors of said corporation. Both the statute and the common law provided an ample remedy in such a case. Sections 1145-1160, Burns' R. S. 1894; 3 Blackstone Com. 262. The statute provides that: "An information may be filed against any person or corporation in the following cases: First when any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this state, or any office in any corporation created by authority of this state." Section 1145, supra. Under this provision it has been held by this court that information in the nature of a quo warranto is a proper remedy to determine the right to an office. Yonkey v. State, ex rel., 27 Ind. 236; State, ex rel., v. Adams, 65 Ind. 393; State, ex rel., v. Peterson, 74 Ind. 174; State, ex rel., v. Gallagher, 81 Ind. 558. An information is the proper remedy to try the title to an office, and to oust an intruder therefrom. Griebel v. State, ex rel., 111 Ind. 369, 12 N.E. 700. In a proceeding by information the defendant may set up and show that he was legally elected to the office in dispute. State, ex rel., v. Shay, 101 Ind. 36. Information is the proper proceeding to remove officers of a corporation illegally elected. Smith v. Bank of the State, 18 Ind. 327. Or if the complaint in the case be construed as a complaint against the defendants for wrongfully assuming to act as a corporation when they are not, information is the proper remedy. State, ex rel., v. Beck, 81 Ind. 500; Board, etc., v. Hall, 70 Ind. 469; Mullikin v. City of Bloomington, 72 Ind. 161; State, ex rel., v. Town of Tipton, 109 Ind. 73, 9 N.E. 704; Smith v. State, ex rel., 140 Ind. 343, 39 N.E. 1060. The legality of a corporation cannot be collaterally questioned, but must be tested by an information. North v. State, ex rel., 107 Ind. 356, 8 N.E. 159. It has been directly held that an injunction will not lie in just such a case as this. Hagner v. Heyberger, 7 Watts & Serg. 104, 42 Am. Dec. 220. See, also, Miller v. Ewer, 27 Me. 509, 46...