Tower Hill Connellsville Coke Co. v. Piedmont Coal Co.

• Decision Date: 15 October 1929
• Docket Number: No. 2846.,2846.
• Citation: 35 F.2d 179
• Parties: TOWER HILL CONNELLSVILLE COKE CO. OF WEST VIRGINIA v. PIEDMONT COAL CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

35 F.2d 179 (1929)

TOWER HILL CONNELLSVILLE COKE CO. OF WEST VIRGINIA v. PIEDMONT COAL CO. et al.

No. 2846.

Circuit Court of Appeals, Fourth Circuit.

October 15, 1929.

Thomas Watson, of Pittsburgh, Pa., and E. W. Knight, of Charleston, W. Va. (Lon H. Kelly, of Charleston, W. Va., and M. W. Acheson, Jr., and Robert M. Steffler, both of Pittsburgh, Pa., on the brief), for appellant and cross-appellee.

E. C. Higbee, of Uniontown, Pa., and William M. Robinson and Edwin W. Smith, both of Pittsburgh, Pa. (Arthur S. Dayton, of Charleston, W. Va., on the brief), for appellees and cross-appellants.

Before PARKER, and NORTHCOTT, Circuit Judges, and WEBB, District Judge.

PER CURIAM.

A petition for rehearing has been filed in this case urging: (1) That the statements in the opinion reported in 33 F.(2d) 703 as to the purchase of preferred stock and the plan to build by-product coke ovens are an adjudication upon these matters without the Pennsylvania corporation, or its officers or directors, having been made parties to the suit; (2) that other facts and transactions have been ignored in the opinion of the court; and (3) that, if a suit should be instituted by the receivers appointed, the common stockholders of the West Virginia corporation, who are not parties and have not been heard here, would not have opportunity to be heard therein. Although we think that the merits of the case were sufficiently covered by our former opinion, we desire, in denying the petition for rehearing, to notice these contentions.

The first contention apparently arises from a fundamental misconception of our decision, which did no more than approve the appointment of receivers for the West Virginia corporation for the limited purpose of instituting suit against the Pennsylvania corporation and its officers and directors. It was uncontroverted that all of the stock of the Pennsylvania corporation was owned by the corporation of West Virginia; that the control of the latter was held by its common stock; and that no dividends were being paid on its preferred stock because no dividends were paid to it by the Pennsylvania corporation, which, however, had a large surplus consisting in large part of liquid assets. It was contended by complainants that those who controlled the common stock of the West Virginia corporation, and through it the action of the corporation of Pennsylvania, were wrongfully refusing to pay dividends on the stock of the latter corporation, which would have...