fective. Said section contains, among oth-ary 29, 1920. The notice, however, was not ers, the following provisions: "Provided, that party asking such re-extension of time shall give the opposite party or his attorneys of record at least three days' notice of the time when and place where said applications would be heard: And, provided further, that the application must be made and the time for the hearing thereof set for a day prior to the expiration of the time first given." served until February 27, 1920, which was too late to take the steps prescribed by statute in order to obtain an effective reextension of time within which to file such bill of exceptions. As tending to support the conclusion we have reached, see the following decisions of this court: King-Crowther Corp. v. Ashcraft (1915) 60 Ind. App. 412, 110 N. E. 998; Ft. Wayne, etc., T. Co. v. Kumb (1917) 64 Ind. App. 529, 116 N. E. 309. MID CITY REALTY CO. v. ST. MICHAEL It has been held that an extension of time under said section without notice is ineffective. Pritchard v. Mines (1915) 61 Ind. App. It follows that appellee's contention that 203, 111 N. E. 804; English v. English (1914) | the bill of exceptions containing the evi182 Ind. 675, 107 N. E. 547; Richmond, etc., dence is not properly in the record, and Co. v. Rau (1915) 184 Ind. 117, 110 N. E. therefore no question is presented for con666; Fauvre Coal Co. v. Kushner (1919) 188 sideration, must be sustained. For the reaInd. 314, 123 N. E. 409; Fostoria Oil Co. v. son stated, the judgment is affirmed. Gardner, 124 N. E. 467. If this be true, what notice must be given? Clearly, that provided by the section itself, viz. not less than three days. In this case there was only a 1-day notice. Surely the explicit provision of the statute cannot be thus disregarded, and an order of extension still be effective. If a party seeking to perfect an appeal may ignore the express provision of the statute and determine the time of notice (Appellate Court of Indiana, Division No. 1. for himself, may he not serve it on the same day the order is procured, and still claim that it should be effective? It will be presumed that the Legislature had some useful purpose in mind when it fixed the time for such notice, and it is our duty to apply the provision as written. It will be observed that the time for filing the bill of exceptions, as originally given, expired on March 1, 1920. The above section provides that the application for the extension "must be made, and the time for the hearing thereof set for a day prior to the expiration of the time first given." The last day for a hearing on said petition therefore, was Febru Nov. 30, 1921.) Harry L. Crumpacker, Judge. Action between the Mid City Realty Company and the St. Michael Greek Catholic Church and others. From an adverse judgment, the former appeals. Dismissed. Bruce & Bruce, of Crown Point, and Wm. H. Matthew, of Gary, for appellant. Knapp & Campbell, of Chicago, Ill., and Pattee & Johnson, of Crown Point, for appellees. REMY, J. Dismissed on authority of Kreuter v. Lake Land Co., 159 Ind. 372, 65 N. E. 4. In re BICKERTON et al. (Court of Appeals of New York. 1921.) Oct. 11, 1. Corporations 182-Appraisers must take evidence to determine value of stock of dissenting minority stockholder on sale of corporate property. Appraisers appointed under Stock Corporation Law, § 17, to appraise the value of shares of stock of minority stockholder dissenting from a sale of corporate property, must take competent evidence and preserve a record thereof, and cannot on their own inspection, judgment, and view of the property of the corporation determine the value of the stock. 2. Corporations 182-Court retains Jurisdiction to direct payment after appointment of appraisers of stock of one dissenting from sale of property. The Supreme Court retains jurisdiction, after appointment of appraisers under Stock Corporation Law, § 17, to appraise the value of shares of stock of one dissenting from sale of corporate property, for the purpose of directing how payment should be made. upon which appeal might be made to a court of equity. Appeal from Supreme Court, Appellate Division, First Department. In the matter of the application of Joseph P. Bickerton, Jr., and another, as executors under the last will and testament of William Harris, deceased, stockholders of the New York Theatre Company, for the appointment of appraisers to determine the value of the From an unanimous order of the stock. First Appellate Division (196 App. Div. 231, 187 N. Y. Supp. 267) dismissing an appeal from an order of the Special Term denying a motion to set aside or modify report of appraisers appointed under section 17 of the Stock Corporation Law to appraise the value of the shares of capital stock, held by the executors, such company and stockholders under purported authority of Code Civ. Proc., § 190, subd. 3, appeal. Appeal dismissed. See, also, 187 N. Y. S. 927. Clarence J. Shearn, of New York City, for appellants. Joseph P. Bickerton, Jr., Philip W. Ittenberg, and Sidney R. Fleisher, all of New York 3. Statutes 188-Must be given reasonable City, for respondents. construction. Mere juxtaposition, grammatical construction of a sentence, punctuation, and the ordinary meaning of a word must give way to what on the whole is a reasonable construction of a statute. 4. Corporations 182-Appointment of appraisers of stock of one dissenting from sale of property held not final, so that court may review their proceedings and confirm or reJect their report. The appointment of appraisers under Stock Corporation Law, § 17, to appraise the value of stock of a stockholder dissenting from sale of property, is not final, and the court in making a final order directing payment in accordance with the report has the incidental power and inherent duty to examine the proceedings of the appraisers and determine whether they have been in accordance with law, and confirm or reject the same. 5. Appeal and error ~84(1)—Order dismissing an appeal held not appealable. In absence of permission given under Code Civ. Proc. 190, subd. 3, certifying specific questions to be answered, an appeal will not lie from an unanimous order of the Appellate Division dismissing an appeal from an order of Special Term denying a motion to set aside or modify report of appraisers appointed under Stock Corporation Law, § 17, to appraise corporate stock of one dissenting to sale of corporate property, motion made by appellant not being one involving the ordinary question of confirmation of the report, but rather one claimed to rest on those fundamental grounds HISCOCK, C. J. Section 16 of the Stock Corporation Law (Consol. Laws, c. 59) provides, in substance, that a stock corporation, except a railroad corporation, with the consent of two-thirds of its stock, may sell and convey its property or any part thereof to a domestic corporation engaged in a business of Section 17 of the same general character. said law provides: "If any stockholder not voting in favor of such proposed sale or conveyance shall at such meeting, or within twenty days thereafter, object to such sale, and demand payment for his stock, he may, within sixty days after such meeting, apply to the Supreme Court at any special term thereof held in the district in which the principal place of business of such corporation is situated, upon eight days' notice to the corporation, for the appointment of three persons to appraise the value of such stock, and the court shall appoint three such appraisers, and designate the time and place of their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock shall be made to such stockholders. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such corporation, and another to such stockholder, if demanded; the charges and expenses of the appraisers shall be paid by the corporation. When the corporation shall have paid the amount of such appraisal, as directed by the court, such stockholder shall cease to have any interest in such stock and in the corporate property of such corporation and such stock may be held or disposed of by such corporation." as this or whether there should be a subsequent order based upon a review of the action of the appraisers, and, if confirming the same, finally directing purchase by the corporation of the stock of its dissenting stockholders. We feel that we ought to consider this question in view of its importance and of the careful consideration given both by the Appellate Division and by counsel, although this particular appeal might be disposed of upon a technical ground hereafter to be stated. The question which we have suggested of tion of the Stock Corporation Law which we have quoted, and, while the solution is not free from difficulty, we are inclined to think that under a reasonable interpretation of that section the order appointing appraisers was not a final order, but that such final order would be made after the appraisers had acted and on a motion for confirmation of their report. In attempting the proper construction of the legislative enactment, the nature and purpose of the proceeding for which it was providing are considerations of importance as calculated to throw light upon the meaning of the provisions which were adopted. The appellant, New York Theatre Company, a domestic corporation organized to conduct an amusement business, owns a large amount of valuable real estate in the city of New York which it desires to sell to another corporation of the same general char-course involves interpretation of the secacter as itself. At a meeting duly called, holders of more than two-thirds of its capital stock consented to such sale, but respondents and some other stockholders objected to and voted against the sale, and thereafter and within the time specified by section 17, above quoted, respondents applied to the Supreme Court for an order appointing appraisers to value their stock, designating the time and place of their proceedings and directing the manner in which payment for such stock should be made. An order was made in accordance with the prayer of their petition, and there after three appraisers were appointed who proceeded to consider the value of the stock. Witnesses were sworn and much evidence The proceeding provided for is a special taken, and thereafter majority and minority proceeding, and the termination of a special reports were made in triplicate, one of each proceeding is an order which passes upon the being given to each of the parties, and the prayer of the petition and finally determines third with the evidence which had been taken the rights of the parties. The nature of this filed in the clerk's office. Thereafter a mo- final order must be determined by consideration was made by the appellant on exceptions tion of the ultimate relief which the petition which had been taken to the majority report seeks and which the order must grant or to set aside or modify the same on the ground deny. The ultimate relief which a petitioner that serious errors had been made by the seeks under this statute is a direction of the appraisers joining in said report, to the great court compelling the corporation upon cerdamage of appellant. This motion was de-tain facts alleged in the petition to purchase nied by the Special Term, and an appeal his stock at a valuation fixed by appraisers. therefrom was dismissed by the Appellate the appointment of appraisers is not naturalDivision on the general ground that the re-ly or on comparison with other analogous port of the appraisers was final, and not in statutes a final disposition of his petition; any manner subject to review or confirmation by the court. We do not understand that this decision indicates the view that the action of the appraisers might not be set aside for fundamental reasons, such as lack of jurisdiction, fraud, or willful misconduct of which a court of equity, might take cognizance, but only that the court may not review it for correction of ordinary errors of law or fact, and to which class the alleged errors complained of by appellant undoubted-appreciated the character of the proceeding ly belong. Thus the broad question presented by the order of the Appellate Division and the discussion of counsel upon this appeal becomes the one whether the order appointing the appraisers is the final one in such a proceeding it is in its nature an intermediate order for proceedings which may properly become the basis for final action by the court. This statute is certainly an anomaly if it means that in the disposition of property rights the order which appoints appraisers in effect requires acceptance of their action in aqvance and without any regard to the errors which may impair its correctness and justice. We must assume that the Legislature fully I which it was providing for, the procedure commonly followed in such proceedings, and the principle fundamental in our jurisprudence that property rights shall not be disposed of except upon competent evidence. And especially we must assume that the Leg (133 N.E.) We islature had in mind that ordinarily the ac- [ fairly to be implied that as a means of distion of inferior and quasi judicial bodies, charging their duties and appraising the valsuch as the appraisers under this statute ue of the stock competent evidence should be were, is subject to review, and that, when taken and a record thereof preserved. ever it has been the legislative purpose to are unable to accept the view of the Appelwithdraw such action from review and make late Division that this statute means, as it conclusive, this purpose has been clearly stated by that court, that the appraisers expressed. The latest illustration of this might upon their own inspection, judgment, principle before this court was the statute and view determine the value of stock which providing that the action of the board for the might run into hundreds of thousands of revision of assessments in the city of New dollars. No case has been called to our atYork should be final in fixing damages caused tention or can be thought of where a statute by a change of street grades. Allowance of has been interpreted to provide that property such damages was a new form of relief just rights might be disposed of in a judicial proas the present proceeding is, and we held ceeding like this except upon legal evidence that the Legislature had the power to send duly taken, and we cannot believe that it such a question to a board for determina- was the intention of the Legislature in this tion and to make its action final as in that proceeding to revolutionize fundamental princase it had in express language done. People ciples, and permit it to be conducted in some ex rel. Crane v. Hahlo, 228 N. Y. 309, 127 N. haphazard method devised by inexperienced E. 402. or experimentally inclined appraisers which would leave no trace of the path by which they reached their conclusion, and which would permit no correction of errors, however grievously they might wander from a proper course of consideration. When in the light of these considerations we approach the interpretation of the section, it is at once apparent that it is incomplete, and that we must give it a liberal interpretation to the end of accomplishing its undoubted purpose, and that beyond question some provisions must be implied. order. The conduct of the appraisers in this case where witnesses were duly sworn and evidence taken and filed in the county clerk's office is a very practical illustration of the way in which persons would naturally interpret the statute in this respect. We search in vain for any express and definite provision authorizing an order compelling the corporation to pay the appraised value and take up the dissenting stock. It is merely enacted that, "when the corporation [2, 3] Still further by implication the Sushall have paid the amount of such apprais-preme Court retained jurisdiction of this proal, as directed by the court, such stockholder ceeding after the appointment of the appraisshall cease to have any interest," etc. And ers for certain purposes. It was required yet there is no doubt that the purpose of the to fill any vacancy in the office of appraiser statute is to force the corporation to take which might occur by resignation or refusal up the stock, and that somewhere the court to act. It necessarily, although not so exwould be justified in making that order. pressly stated, was required in case of disSuch direction would seem to be the final pute to fix the fees and expenses of the appraisers which were required to be paid by the corporation. No other method is suggested by which this can be done. It was required to prescribe the manner in which payment for the stock should be made. It has been assumed that this direction should be contained in the order appointing the appraisers, but we do not think that the statute reasonably is thus to be interpreted. mere fact that the court is to prescribe the manner in which payment shall be made indicates that some discretion should be exercised in making the direction. It very well may be that a corporation required to pay hundreds of thousands of dollars in taking up stock of dissenting stockholders should be [1] The statute requires that the apprais- given more time and different conditions of ers shall be "duly sworn honestly and faith-payment than a corporation which was refully to discharge their duties, shall estimate quired to advance only a small sum of money and certify the value of such stock at the for this purpose. There would be no definite time of such dissent." We think that it is fixation of the amount to be paid until after Again, a stockholder only under certain conditions is permitted to apply to the court in proceedings to compel the purchase of his stock. If those conditions do not exist, he is not entitled to relief. There can be no doubt that on the return of his petition the corporation would be entitled to disprove, if it could, the existence of the necessary require ments for relief, and yet this right must be wholly implied. There is not a word in the statute expressly securing it. Then, pursuing the subject, we are convinced that other implications fairly, even though some of them less obviously, must be made. The the appraisers had valued the stock which [tion which we have discussed. If that deciwas to be taken up, and we think that the sion had passed upon the question whether statute with perfect fairness and reason may the action of appraisers there involved was be interpreted as meaning that this direction subject to review by the court, we do not for payment shall be made by the court after think it could be distinguished from the presthe appraisers have completed their valua- ent case, because of the slight difference in tion, and when for the first time it can be wording between the statute now before us done intelligently. It is true that the loca- and section 8 of the Business Corporations tion of the sentence covering this detail is Law (Consol. Laws, c. 4), there under consuch that it might be inferred that it was to sideration. be included in the order appointing appraisers, but it is a familiar principle that mere juxtaposition, grammatical construction of a sentence, punctuation, and the ordinary meaning of a word must give way to what upon the whole is a reasonable construction of a statute. Stress is placed upon the fact that in the latter statute it is provided that the court in a proceeding similar to the present one shall appoint appraisers, designate the time and place of their first meeting, "with such directions in regard to their proceedings as shall be deemed proper," and it is thought that the words which have been quoted would somehow enable the court to require confirmation of the report of the appraisers as was in fact provided in the order made in that proceeding. [4] And thus we come to the final and precise query whether the statute is to be construed as requiring the court to pass upon the report of the appraisers and confirm or reject the same. This question is largely answered by what has already been said. If We are not able to accept this view. If it we are right in our view that the report is was the general intent and purpose of the to be based upon evidence and returned with Business Corporations Law that the action the report of the appraisers, that the manner of the appraisers should be final and not of payment is to be fixed by the court after subject to review, we do not think that the it knows what the amount will be, and that language permitting the court to give direcin accordance with orderly and ordinary pro- tions in regard to their proceedings would encedure a final order is to be made terminat-able it to overturn this fundamental purpose ing the special proceeding, the answer to our and intent. The language would be confinal query is not doubtful. Of course, be- strued as enabling the court to give directions fore a court made a final order directing pay-in regard to the details of their proceedings. ment in accordance with the report of the appraisers, it would as a matter of incidental power and inherent duty examine the proceedings of the appraisers and determine whether they had been so in accordance with the principles governing such a proceeding that they ought to be approved and confirmed. It is our conclusion that they would be thus subject to review on a motion to confirm or reject. In reaching this conclusion we assume the correctness of the view which has been expressed that the Legislature, in permitting a corporation to sell its property, as this corporation desires to do, has the right to impose as a condition that it should purchase the stock of objecting stockholders at a value to be fixed in a certain manner, and that such manner might exclude review by the Supreme Court of the action of appraisers appointed for that purpose. But that does not answer the question before us. The Legislature might do this, but the question is whether by the statute under review it did do it. We do not regard our decision in Matter of Seaich, 219 N. Y. 634, 114 N. E. 1083, affirming without opinion 170 App. Div. 686, 156 N. Y. Supp. 579, as at all decisive of the ques This court, however, did not at all consider the question now under discussion. Assuming to act under the language of the statute, the court in its order appointing appraisers did in effect provide that their report should be subject to confirmation. No appeal was taken from this provision, and, without objec. tion, all parties to the proceeding assumed that this might be done, and when the case reached this court no consideration whatever was given by counsel to the question whether such direction was proper. Under such circumstances this court naturally was not led to consider the question, but accepted the views which were adopted and acted upon by counsel without any question or doubt whatever. [5] While, as we have indicated, we think that the appellant is right in his general contention that the action of the appraisers appointed under this statute is subject to review by the court, we do not think that this particular appeal will lie. As we construe it, the motion made by the appellant was not one involving the ordinary question of confirmation or not of such a report, but rather a motion claimed to rest upon those fundamental grounds upon which appeal might be made to a court of equity. At least |