Youmans v. Hanna

• Decision Date: 28 December 1916
• Citation: 160 N.W. 705,35 N.D. 479
• Parties: YOUMANS v. HANNA et al.
• Court: North Dakota Supreme Court

35 N.D. 479

160 N.W. 705

YOUMANS

v.HANNA et al.

Supreme Court of North Dakota.

Dec. 2, 1916.

Rehearing Denied Dec. 28, 1916.

Syllabus by the Court.

Where the only resident attorney and attorney of record in a lawsuit signs and consents to the filing of a stipulation advancing the cause upon the calendar of the Supreme Court and setting it for hearing upon a day certain, such stipulation will not be set aside upon an affidavit by him merely to the effect that “he believes” he had no authority to sign the same, and that “he is informed” his nonresident associate counsel would be engaged and unable to prepare the brief, when the facts as to authority and engagements are clearly matters of positive knowledge to his client and such nonresident counsel, and these persons themselves furnish no proof or affidavits whatever of the facts alleged, and when the court is satisfied that counsel had abundant time for preparation.

Nonresident counsel are not permitted to practice in the courts of North Dakota as a matter of right, but as a matter of permission and privilege merely.

It is the duty of a state banking board to require a bank to remove objectionable securities where in its opinion the safety of the depositors requires it.

Where such board takes such an action and is justified by the facts in doing so, the motives of its members are immaterial, since no liability can be based upon the performance of a clear and positive public and official duty.

If a banker feels aggrieved at the action of the state banking board in requiring him to remove objectionable securities, he should apply to the courts to have such order set aside under the provisions of paragraph 3, § 5146, Comp. Laws 1913. Unless this is done, such order will remain in force and be effective.

Except where the members engaged make what would otherwise be a lawful and innocent act a nuisance and harmful, what one may do singly a number may do together. The mere fact that a number of persons join together in making a purchase of banking stock upon terms and conditions which would have been perfectly lawful for one to do by himself does not render such transaction unlawful.

The gist of the action of conspiracy is damage, and where no damage is proved the action cannot be maintained.

An order of the state banking board requiring the Savings Deposit Bank of Minot to remove objectionable securities and closing the bank on account of the failure so to do held to have been lawful and valid.

The purchase of the controlling stock in the said bank by certain of the defendants after it had been closed held to have been a valid and legal transaction.

Appeal from District Court, Ward County; W. J. Kneeshaw, Special Judge.

Action by Grant S. Youmans against Louis B. Hanna and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an appeal from a judgment of the district court of Ward county which was rendered for the defendants on a directed verdict. The amended complaint was as follows:

The plaintiff, appellant herein, in his complaint in this action, asserts and states with other facts that:

(1) Heretofore, and during the year 1909, the plaintiff, Grant S. Youmans, organized and established the Savings Deposit Bank of Minot, N. D. The said bank was incorporated under the laws of North Dakota with a capital stock of $35,000, all of which was paid for and owned by the plaintiff, with the exception of 20 shares, 10 shares of which were issued to George A. McGee. License and lawful authority to operate as a bank was duly issued to said Savings Deposit Bank by the state of North Dakota in the year 1909, and the plaintiff, as the owner of the majority stock and executive officer of said bank, operated it as a going concern continuously from the date of its organization up to and until the said bank was closed by the defendants, and the ownership of the 330 shares of stock of said bank were taken from the plaintiff in the month of October, 1913, in the manner and by the scheme, device, and conspiracy hereinafter more specifically set forth.

(2) In the year 1913, when the events described herein took place, the defendant L. B. Hanna was Governor, the defendant Thomas Hall was secretary of state, the defendant Andrew Miller was Attorney General, and the defendant S. G. Severtson was chief examiner of banks, all of the state of North Dakota, and by virtue of their said respective offices the defendants Hanna, Hall, and Miller constituted the state banking board of said state, and the defendant Severtson was secretary of said board.

(3) During this period, and when the conspiracy to ruin plaintiff and take said Savings Deposit Bank away from him was made and carried out, and during the year 1913, the defendant Robert E. Barron was the cashier, the defendant Henry E. Byorum was the assistant cashier, the defendant James Johnson was the vice president, and the defendant S. J. Rasmussen was the general utility man, political agent, and go-between of the Second National Bank of Minot, N. D. During the same time the defendant D. C. Greenleaf was the agent in the Commercial Club of Minot of the political machinery of the said defendants in office, and the agent of the large employers of labor in said Minot, N. D. Each of these interests were at that time involved in the labor troubles in which the defendant bankers also participated, as parties to said conspiracy.

(4) At the time of the assault upon the plaintiff and the taking of his bank as hereinafter more specifically set forth, the defendant George A. McGee was plaintiff's attorney, and the plaintiff had no knowledge of said McGee's perfidy and betrayal until after the consummation of said conspiracy in which said McGee also participated, as set out in detail herein.

(5) The defendants' hostility to plaintiff had inception in the envy and greed of the defendant bankers, who resented plaintiff's fairness and generosity in paying his depositors 5 per cent, per annum interest on their deposits, which the prevailing rates of interest at that time and place justified. The envy and hostility on the part of the rival bankers was intensified and spread to all of the defendants in the summer of 1912 on account of the plaintiff's sympathy for the downtrodden toilers who were attempting to protect themselves by organization into labor unions, and on account of his efforts in behalf of the right of free speech, in both of which regards plaintiff encountered then and there the determined and bitter opposition of the defendants and each of them in manner and form as narrated in the following paragraph of this complaint.

(6) In the spring and summer of 1913 there were many unemployed men in said city of Minot and general industrial depression as the result of the ruthless manner in which the producers of North Dakota had been exploited by transportation companies as well as by monopolies in control of their markets and market places and of the prices paid for farm products. Certain large contractors and employers of labor in said city of Minot and in the state of North Dakota generally sought to take advantage of the large number of unemployed laborers by depressing the wage scale and by heavier exactions upon their laborers; and to meet this further and unwarranted exploitation and oppression efforts were made to organize these common laborers for their self-protection. In these efforts meetings were held upon the public streets of Minot at which addresses were delivered and arguments made urging united effort and organization on the part of all toiling men. These addresses and arguments publicly made, and the impending projected union and organization of the laboring men of that section, aroused and stimulated the fear of the large contractors and employers of labor and incurred the bitter hostility and opposition to the effort to organize the workers on the part of those defendants and others who were closely allied politically and financially with said contractors and large employing concerns; and in consequence stern and unlawful methods of repression were adopted in carrying out which the freedom of speech on the public streets was denied, many of the laboring men and others sympathizing with them were arrested and thrown into jail, and a veritable reign of terror was inaugurated, in which there was much suffering and many starving men. Into these labor troubles of Minot plaintiff was by the resistless demands of his conscience drawn and he felt impelled to help feed the hungry and release the imprisoned to the extent of his abilities. This humanity on the part of the plaintiff incurred the enmity and malignant hatred of all of the defendants, whose greedy instincts had been aroused and stimulated by the clash with labor, and who looked upon plaintiff, a man of means and a banker, as a traitor to their class and a menace to their coveted and sustained supremacy in the social order.

(7) In consequence of the envy, enmity, and greed of the defendant bankers and the fear and hatred of the defendant politicians and office holders, occasioned and stimulated as above set forth, and as the expression thereof, the said defendants in October, 1913, confederated and conspired together and with each other and with others whose names are to plaintiff unknown for the purpose of wrecking plaintiff's said bank and destroying plaintiff's reputation and influence as a banker and citizen; and in carrying out such unlawful purpose and conspiracy the defendants, under color and pretense of public service, and by the perversion and abuse of official power and office, but without authority of law, assaulted and took actual possession of said bank and its business and drove plaintiff out of said bank and business into obscurity, humiliation, and disgrace, and divested plaintiff without right or cause of all of his property and his reputation as a banker.

(8) The assault of the defendants upon the plaintiff and...