The State ex rel. People's Railway Company v. Talty
| Decision Date | 25 May 1897 |
| Citation | 40 S.W. 942,139 Mo. 379 |
| Parties | The State ex rel. the People's Railway Company, Appellant, v. Talty, Judge |
| Court | Missouri Supreme Court |
Writ denied.
Kinealy & Kinealy for relator.
(1) The right of Clark and Campbell was capable of being contested and the judgment involved issues of law and facts. State ex rel., etc., v. Sportsman's Park Ass'n, 29 Mo.App. 329; High on Extr. Legal Rem. [3 Ed.], sec. 310; 1 Morawetz on Priv. Corp. [2 Ed.], sec. 473; Merrill on Mandamus, sec. 161; 19 Am. and Eng. Ency. of Law, 231, par 2. (2) An appeal lies from a judgment awarding or denying a peremptory writ of mandamus even if the proceeding before defendant were deemed such a proceeding. State ex rel Laclede Bank v. Lewis, 76 Mo. 370; State ex rel. v Horner, 10 Mo.App. 307. (3) An application to compel an inspection of books and papers of a corporation, in the absence of a statutory right, requires a trial of issues of law and fact, in addition to the question as to whether the applicant is a stockholder. State ex rel. v. Sportsman's Park Ass'n, 29 Mo.App. 329, 330; High on Extr. Legal Rem. [2 Ed.], sec. 310, p. 285; 1 Morawetz on Priv. Corp. [2 Ed.], sec. 473, p. 444; Merrill on Mandamus, sec. 161, p. 198; 19 Am. and Eng. Ency. of Law, 213, par. 2. (4) An appeal lies by the relator from the judgment of Judge Talty in the proceeding mentioned in our petition. 2 Ency. of Pl. and Pr. 70, par. 2; State ex rel. Gercke v. Seddon, 93 Mo. 520; Nolan v. Johns, 108 Mo. 431; Bank v. Bank, 136 U.S. 223; Farmers' L. & T. Co. v. Railroad, 76 F. 608; City of New Orleans v. Peak, 52 F. 74. (5) The receiver can not appeal; hence, it only rests with the relator to do so. McKinnon v. Wolfender et al., 78 Wis. 238; Melendy v. Barbour, 78 Va. 555. (6) The proceeding in the circuit court was not a mandamus case, and is not affected by the provisions of section 2524 of 1 Revised Statutes of Missouri 1889. Merrill on Mandamus, sec. 13, p. 7, and cases cited; Pollock v. Farmers' L. & T. Co., 158 U.S. 617-620; Kennedy v. Railroad, 2 Flipp. 704; Rouse v. Letcher, 156 U.S. 47-56. (7) The proceedings in the court of appeals are no bar to this proceeding in this court. Ency. of Pl. and Pr. 986; Martin v. Cooke, 14 N.Y.S. 329; Stokes v. Railroad, 89 Hun. 2.
Albert Arnstein for respondent.
(1) A writ of mandamus will not lie unless the party applying therefor shows a clear right to the full remedy which he asks. State ex rel. Snyder v. Newman, 91 Mo. 445; State ex rel. Ensworth v. Albin, 44 Mo. 346. (2) An appeal with a supersedeas bond does not lie from an order of the court authorizing an inspection of the books and accounts of a corporation. R. S. 1889, sec. 2524. (3) An appeal will only lie in such cases as are specifically provided for by statute. Session Acts 1895, p. 91; Voorhis v. Western Union Building and Loan Ass'n, 59 Mo.App. 55; Sater v. Hunt, 61 Mo.App. 228. The statute gives a right of appeal only in certain cases therein enumerated, and from a final judgment in a cause. As an order made upon its receiver by the court is not one of the enumerated cases nor a final judgment, an appeal will not lie therefrom. An incidental order in a case pending before the court is not a judgment from which an appeal will lie. George v. Craig, 6 Mo. 648. (4) Under the statutes (Session Acts 1895, page 91), the right of appeal lies only in favor of a party who is aggrieved by the judgment of the court. In order that a person be "aggrieved," he must have a pecuniary interest in, be directly affected by the decree, or when his right of property may be established or divested thereby. Swackhamer v. Kline, 25 N.J.Eq. 50; Andrews v. Andrews, 46 N.J.Eq. 528; Hemminway v. Cory, 16 Vt. 225; Bush v. Bank, 48 N.Y. 659; Hall v. Brooks, 89 N.Y. 33; Lawless v. Regan, 128 Mass. 592. As the defendant's pecuniary interests could not be directly affected by the order permitting the stockholder to inspect the books, and, as its property rights were neither established or divested thereby, relator was not "aggrieved" by the order, and the court properly refused to grant him an appeal. (5) Relator was not in any sense a party to the proceedings. Although it filed an answer to the petition of Campbell & Clark, such filing was permitted as a matter of courtesy, rather than a matter of right. The petition prayed no order or decree against the relator, but simply an order upon the receiver, with reference to the property in his possession. It might, with equal propriety, be urged that the defendant could appeal from an order of the court directing the receiver to employ or discharge help, or from an order directing him to cause the tracks of the company to be placed in proper repair. (6) As the books were in the custody and exclusive control of the court, which granted the petition to inspect them, the situation is identical with what it would be, had the corporation itself, while in possession of its books, voluntarily accorded a stockholder the privilege of inspection. The situation gives rise to no issue for a court to consider.
Mandamus.
This is a proceeding by mandamus instituted at the relation of the People's Railway Company of St. Louis, to compel respondent, one of the judges of the circuit court for the city of St. Louis, to allow an appeal from an order made by said court upon its receiver in charge of the books and property of the relator, permitting an examination of the books of the corporation to certain of its stockholders.
The facts out of which these proceedings grew are thus briefly stated:
On April 16, 1897, one Lewis M. Rumsey, as relator, instituted proceedings against the relator herein, the People's Railway Company, asking that a receiver be appointed for said railway company to protect the bondholders of the company represented by the relator therein and other lienors, and for a sale of the property of the company, and that the company be ordered to turn over to said receiver its books of accounts, vouchers, papers, and all and every kind and character of property it owned and controlled. When the same came up for hearing before the respondent herein as one of the judges of the circuit court of the city of St. Louis he made an order appointing one Charles Green as receiver in accordance with the prayer of the petitioners therein; and in compliance with the order so made in said cause by the respondent herein as judge of the court, said People's Railway Company did turn over and deliver to said Charles Green as receiver all the books, papers, accounts, and all other property and effects belonging to the company; and the receiver, as officer of the court, has ever since been in the control and management of the company's property and in possession of its books, papers, accounts, etc. No objection was made by the relator herein to the entry of the decree appointing the receiver; no defense has ever been made to the suit filed, and the time for pleading to the petition filed against the company has passed.
On March 31, 1897, Charles Clark and James Campbell filed their petition or application in the cause of Lewis M. Rumsey against the People's Railway Company, praying for an order directing the receiver to authorize them to make or cause to be made an examination of the books and accounts of said People's Railway Company, stating that they were now, and had been for some years past, stockholders of the People's Railway Company, owning respectively one hundred and twenty-five and five shares of its capital stock which stood in their names upon the books of the company; that as such stockholders they requested the receiver to submit the books in his custody to an examination by them, but he says he is simply the custodian of the books and papers, as an officer of the court, and that he can not permit the examination unless ordered and directed by the court.
To this petition or application the receiver files what he calls his answer, admitting that he is the receiver appointed as hereinbefore mentioned, and as such has the possession of the books of accounts and papers pertaining to the business of the People's Railway Company, but says that as such receiver he has no knowledge or information sufficient to form a belief as to whether, at the time of the filing of the application by said Clark and Campbell, they were or were not stockholders of the People's Railway Company, and further answering said petitioner, states that the People's Railway Company denies that he has any right or authority to submit its books of accounts to examination by persons who, as against it, do not show a right to examine said books, and has notified him that neither said Clark nor Campbell has any legal or equitable right to make such an examination and has warned him not to permit either said Clark or Campbell to have access to, or to examine, its said books unless they show grounds entitling them to make such an examination, and he therefore prays the judgment of the court whether the said Clark and Campbell, or either of them, are entitled to the order they ask.
The court also permitted the People's Railway Company to file what it termed its answer to the petition of Clark and Campbell asking for the order upon the receiver for an examination of the books, and that answer, omitting names of parties and caption, is here given in full, that relator's contention may be properly shown:
To continue reading
Request your trial