Gambar halaman
PDF
ePub

advice of the deputy district attorney, conveyed to him through his attorney, and acting in good faith, he appeared before the magistrate and swore to the information.

There is nothing in the record that in any way controverts any of these sworn statements, and it must result that it is established that defendant in making the charge complained of acted in good faith, relying upon the advice of the deputy district attorney, who had previously been fully and fairly advised of all of the facts within the knowledge of the defendant. "The rule seems to be that where one seeking in good faith the advice of a public prosecuting officer about the commencement of a criminal prosecution discloses to such officer all the facts and circumstances within his knowledge, or whica he has reasonable ground to believe, relating to the offense, and is advised by that officer to institute the prosecution, his defense of probable cause will be established if he acted in good faith upon such advice, even though there were other exculpatory facts which he might have ascertained by diligent inquiry." Hess v. Oregon Baking Co., supra. An effort was made by plaintiff to challenge defendant's good faith in prosecuting the plaintiff by attempting to show that the prosecution was instituted by him, aided by Kircheiner and McHaley, with the object in view to force plaintiff to return to them the several amounts of money he had obtained from them. But it is sufficient to say, without reviewing the testimony in detail, that the attempt wholly failed. There was no testimony offered by plaintiff from which a jury could have drawn an inference of bad faith on part of defendant in that connection. Each of his witnesses, offered for that purpose, testified that the defendant stated that, while he would like to have his money back, he was willing to forego that and to prosecute the plaintiff, because he believed him guilty. The court was in error when it refused the requested instruction.

It follows, therefore, that the judgment should be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

(50 Or. 218)

WOLFER v. HURST et al. (Supreme Court of Oregon. Aug. 6, 1907.) 1. APPEAL-REVIEW-HARMLESS ERROR.

Plaintiff may not complain on appeal of an order modifying a temporary restraining order without the notice to him expressly conferred by B. & C. Comp. § 422, where he is not entitled to the injunction.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4035.]

2. INJUNCTION-GROUNDS-TRESPASS.

In the absence of a showing that the acts complained of amount to an irreparable injury

to the estate, a court of equity will not enjoin a trespass thereon.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 98.]

3. SAME-REMOVAL OF CROPS.

Plaintiff may not enjoin defendants from disposing of a crop from his farm until the final determination of a forcible entry and detainer action between them pending in the Supreme Court, on the ground of their insolvency, where they have given an undertaking under B. & C. Comp. § 5754, entitling plaintiff to recover, if the judgment is affirmed, double rental value of the property during the pendency of the action. 4. FORCIBLE ENTRY AND DETAINER-APPEAL— SUFFICIENCY OF UNDERTAKING — I'RESUMP

TION.

Where on judgment for plaintiff in a forcible entry and detainer action defendants give a bond under the express terms of B. & C. Comp. 5754, guaranteeing payment of twice the rental value of the land should judgment be affirme:1, in the absence of objections or exceptions thereto, the undertaking must be presumed sufficient for the objects given, and is effectual for all purposes until the final determination of the cause.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by George J. Wolfer against W. H. Hurst and another. From a decree dismissing the complaint, plaintiff appeals. Affirmed.

Carey F. Martin, for appellant. A. M. Cannon, for respondents.

KING, C. This is a suit to enjoin defendants from removing or in any manner disposing of a crop of hops from plaintiff's farm until the final determination of a forcible entry and detainer action between the par ties herein pending in the Supreme Court of this state. 47 Or. 156, 80 Pac. 419, 82 Pac. 20. At the time of the filing of the complaint a decision, affirming the judgment of the court below in the proceeding referred to, had been filed. The mandate was withheld awaiting the consideration of a petition for rehearing. The complaint alleges, in effect, that plaintiff is the owner of and entitled to the immediate possession of the property involved in the action mentioned; that defendants forcibly and wrongfully took possession of the premises, which possession they wrongfully and unlawfully retain and hold by force, for the purpose of securing and applying to their own use the crop of 1905, consisting of 10,000 pounds of hops, valued at $1,500, with the intention of selling and removing the same from the land and beyond the jurisdiction of this court, before the mandate of the Supreme Court can possibly be procured; that defendants have been and are cultivating the crops in an improper manner and willfully and maliciously tearing up and injuring the hop vines, thereby and otherwise causing irreparable injury to the estate; that the appeal from the proceedings in the former case was taken, and the petition for rehearing

filed, for the purpose of delay, in order to defraud plaintiff, as aforesaid; that in taking the appeal the undertaking given was only for the sum of $250; that such sum is insufficient to protect the plaintiff in damages and loss which will result from the acts complained of; that defendants are insolvent and unable to respond in damages; and that the rental value of the premises for the year 1905 was about $1,500. On the facts alleged a decree is asked to the effect that plaintiff be declared the owner of the alleged crop free from any claims or liens thereon; that defendants be enjoined from selling or disposing of the crop grown on the premises involved in the former action, or in any manner incumbering the same with a mortgage or other lien, or from removing any part thereof from the jurisdiction of this court, until the final determination of this suit, during which time it was prayed that defendants and their agents be enjoined from in any manner molesting plaintiff's property; that pending the final determination herein a receiver be appointed to take possession of the property, with power to employ the necessary help and to harvest and dispose of the crops. as the court might direct. Upon the filing of the complaint, a temporary restraining order was issued, in accordance with the request, except as to the appointment of a receiver. An answer, by way of a plea in abatement, was filed, to which a demurrer was sustained and the plea dismissed. An answer was then filed to the merits. admitting the existence of the former proceeding and that it was in the Supreme Court, alleged the facts leading to the institution of the forcible entry and detainer action: that defendants had occupied the premises during the pendency of the action throughout the different courts in good faith; had expended $875 in cultivation, growing of the crop, etc., thereon; that the hop crop had been picked by them at the time of the commencement of this suit, and that plaintiff had no right nor title thereto. To the affirmative allegations of the answer a demurrer was filed and sustained, on the ground that they did not state facts sufficient to constitute a defense. On an ex parte motion of the defendants the temporary restraining order was modified, by permitting the removal of the hops from the hophouse on the premises, which were directed to be stored in a warehouse of the Southern Pacific Railway Company at Hubbard, Or., a receipt taken therefor, and immediately deposited with the clerk of the court, awaiting the final determination of this suit. Testimony was taken before the court, and, based upon findings therefrom to the effect that defendants were not insolvent, and that plaintiff has a plain. speedy, and adequate remedy at law, a decree was entered dismissing the complaint. At the time the decree of dismissal was entered, it appearing to the court, b.

affidavit, that the defendants had loaded the disputed hops, for shipment, on cars of the Southern Pacific Railway Company, an order was made by the court, to the effect that defendants return the same to the warehouse of said railway company at Hubbard, Or., to be left there until the final determination of the proceedings on appeal. From the decree dismissing the complaint plaintiff appeals.

It is maintained by the plaintiff that the court erred in modifying the temporary restraining order, without notice having been given to plaintiff in accordance with B. & C. Comp. § 422. The effect of the action of the court in dissolving or modifying an order, under the circumstances named, can only be material when it shall be found that plaintiff is entitled to such relief. The question, then, for determination and the only point urged, necessary to be considered here under the record, is: Had plaintiff a plain, speedy, and adequate remedy at law? If answered in the affirmative, it disposes of the point mentioned, as well as the entire case; for, if plaintiff has such remedy, the error suggested, if it can be termed such, could not have been prejudicial to plaintiff, nor would the action of the court in dismissing the complaint be erroneous. Whatever may be the rule in other states, it is settled here that, in absence of a showing to the effect that the acts complained of amount to an irreparable injury to the estate, a court of equity will not enjoin a trespass thereMoore v. Halliday, 43 Or. 243, 72 Pac. 801, 99 Am. St. Rep. 724; Hume v. Burns (decided July 9, 1907) 90 Pac. 1009.

on.

The evidence does not disclose that any permanent injury was either done or threatened to the premises. The manner of caring for the hops and cultivation thereof is not shown to be such as would result in permanent injury to the estate. The testimony bearing on the subject indicates only a difference of opinion as to the proper manner in which such hops should be handled; and, whatever may have been the proper method of cultivation thereof, no damage of any serious consequence is established, either actual or threatened. It is provided by our statute that, when an appeal is taken in a forcible entry and detainer action, "if judgment be rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff of twice the rental value of the real property of which restitution shall be adjudged from the rendition of such judgment until final judgment in said action, if such judgment shall be affirmed upon ap

peal." B. & C. Comp. § 5754. It could make no difference, therefore, as to the alleged insolvency of the defendants in view of the undertaking provided by the statute, which entitled plaintiff to recover double the rental value of the property for the time during which the action was pending. The undertaking given for that purpose was executed by the defendants and two sureties, and guarantees payment of twice the rental value of the land, in the event of the court adjudging restitution to plaintiff. While the sureties only justify in the sum of $500 each, no limitation is placed on their liability under the instrument. No objection appears to have been made to the sufficiency of the undertaking, nor is it alleged or attempted to be shown that the sureties are insolvent. In the absence of objections or exceptions thereto, the undertaking must be presumed sufficient for the objects given, and is effectual for all purposes until the final determination of the cause mentioned. 47 Or. 156, 80 Pac. 419, 82 Pac. 20. It is evident that the object of this statute was to protect the owner against loss in a case of this kind, while the proceedings are pending on appeal and until the final

determination of the rights of the parties involved, thereby making an injunction unnecessary to secure him against any loss occasioned during the interim, except where irreparable injury to the estate is shown.

The question as to whether plaintiff is entitled to recover the value of the crop or be left solely to his remedy on the undertaking, or as to whether it is in his discretion to rely upon either, is not necessary to a decision herein. But should it be assumed that plaintiff, after obtaining judgment ousting defendants from the land, upon which the crop was raised, was entitled to the possession of the produce grown thereon, during the pendency of the proceedings, he would still have an efficient remedy at law. Parsons v. Hartman, 25 Or. 547, 37 Pac. 61, 30 L. R. A. 98, 42 Am. St. Rep. 803; Moore v. Halliday, supra; Meyer v. Roberts (Or.) 89 Pac. 1051; Jones v. McKenzie, 122 Fed. 390, 58 C. C. A. 96.

It follows from any view that might be taken, under the evidence, that plaintiff has an ample remedy at law, for which reason the decree of the court below should be affirmed.

[ocr errors]

(32 Utah, 497)

GAREY et al. v. ST. JOE MINING CO. (Supreme Court of Utah. June 26, 1907.) On Rehearing, July 17, 1907.)

1. CORPORATIONS-CHARTER-NATURE OF CON

TRACT.

A corporation's charter is a contract between the state and the corporation, between the corporation and the stockholders, and between the stockholders and the state.

2. SAME AMENDMENT-POWER OF STATE.

In granting charters or authorizing the creation of corporations under general laws, the state may expressly reserve the power of alteration, amendment, or repeal, and such reservation becomes a part of the contract between the state and the corporation, and is binding, not only upon the corporation, but also upon every individual stockholder.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12, Corporations, § 119.]

3. SAME.

Under the constitutional provision that all laws relating to corporations may be amended or repealed, and all corporations doing business in the state may as to such business be regulated or restrained by law, the state may not amend charters of existing corporations, so as to change the fundamental character of the corporation, impair the object of the grant or rights vested thereunder, nor amend them in such way as will impair the contractual relations or rights of the stockholders among themselves, or between the corporation and its stockholders; but the Legislature has the right to amend the charter or laws relating thereto, so far as the state is interested, to modify any right, privilege, or immunity granted by the state, to repeal the charter or all laws under which it was granted, to take away altogether the franchises and privileges granted under it, and to make such reasonable amendments or alterations deemed necessary to carry into effect the purposes to the grant or to protect the rights of the public, of the incorporation, and its stockholders, when such amendments or alterations will not defeat or substantially impair the object of the grant or any vested rights.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12. Corporations, § 119.]

4. CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS-CORPORATIONS.

A statute authorizing majority stockholders to amend the articles of incorporation against the consent of the minority, so as to make nonassessable full-paid capital stock assessable and subject to sale for such assessment, affects the contractual relations of the stockholders among themselves, and is an impairment of the obligation of a contract, within the prohibition of the federal Constitution.

5. CORPORATIONS ARTICLES-RIGHT AMEND-AFFECTING NON ASSESSABLE STOCK.

Under Rev. St. 1898, § 338, as amended by Sess. Laws 1903, p. 80, c. 94, providing that articles of incorporation may be amended in any respect conformable to the state laws by a vote representing two-thirds of the outstanding capital stock, provided the personal or individual liability of full-paid capital stock for assessments, etc., shall not be changed without the consent of all the stockholders, such majority stockholders may not amend the articles of incorporation against the consent of the minority. so as to make nonassessable full-paid capital stock assessable.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12. Corporations, § 124.]

ment sustaining defendant's demurrer, plaintiffs appeal. Reversed and remanded.

Lawrence & Robertson and E. A. Walton, for appellants. D. H. Wenger and E. B. Critchlow, for respondent.

STRAUP, J. This action is brought by plaintiffs against the defendant, a mining corporation organized under the laws of the state of Utah, to restrain it from selling certain full-paid capital stock of the corporation owned by plaintiffs for the nonpayment of an assessment levied against the stock by the board of directors. It is alleged in the complaint, among other things, that the capital stock of the corporation is divided into 1,000,000 shares, of the par value of $1 each, of which the plaintiffs are the owners of 149,881 shares; that all the outstanding capital stock is fully paid; that by the terms of the original articles of agreement of incorporation it was agreed by all of the incorporators that "the stock of this company shall be nonassessable"; that under the laws of Utah in force at the time the articles of agreement were made the articles could not be amended so as to make the full-paid capital stock of the corporation assessable without the consent of all the stockholders, and that defendant issued and sold to its stockholders its fully paid and nonassessable shares, represented by certificates signed by its officers, and that each certificate on its face provided that the shares were and are nonassessable; that in pursuance of a call made by the board of directors a stockholders' meeting was held on February 5, 1907, for the purpose of amending the articles so as to authorize the board of directors, for the purpose of paying the expenses, conducting the business, and paying the debts of the corporation, to levy and collect assessments in the manner and form as provided by law, and so that such assessments might be levied and collected before the working capital stock of the corporation was exhausted; that at said meeting 819,636 shares of the outstanding capital stock were represented, of which 635,464 shares voted for the amendment and 184,172 shares voted against the amendment, 122.364 shares of the outstanding capital stock not being represented, the holders of which, it is alleged, withheld their consent to the amendment by not voting for it, and that the holders of the 635,464 shares, in violation of the terms of the articles of agreement of incorporation, wrongfully and illegally assumed to declare the pretended amendment approved and adopted; that in pursuance of the amendment and of the pretended authority conferred upon them thereby, the board of directors, on February 15, 1907, levied an assessment of two cents per share upon all the outstanding full-paid

Appeal from District Court, Third District; capital stock, payable immediately and deC. W. Morse, Judge.

Action by Ellen Garey and others against the St. Joe Mining Company. From a judg91 P.-24

clared it delinquent on the 25th day of March, 1907, and directed that delinquent stock be advertised and sold on the 16th day

of April, 1907, unless the assessment was sooner paid; that the levy of the assessment was illegal and wrongful, and that, unless restrained, the defendant will sell plaintiffs' stock for nonpayment of the assessment. The court sustained the defendant's demurrer to this complaint for want of facts. The correctness of this ruling is questioned by this appeal.

It is alleged that the defendant was organized in the year 1897. It was organized under the laws of 1888 and 1894. So far as concerns this case the laws of 1896 relating to corporations are a mere re-enactment of the laws of 1888, and in no manner repealed or affected the laws of 1894. The laws of 1888, as re-enacted in 1896, provided that the name of the corporation might be altered, the number of its directors or officers changed, and that the articles of agreement of incorporation might be otherwise changed or amended, provided such amendment did not alter the original purpose of the incorporation, but no such change should be made except by a vote representing at least twothirds of the capital stock at a stockholders' meeting called for that purpose. Section 2393 of the Compiled Laws of Utah of 1888 provided that: "Any person who is the holder of full-paid up capital stock, shall not be liable for any assessments or for any indebtedness of the corporation otherwise than by sale of his or her stock, as herein provided, unless distinctly provided for in the articles of incorporation, which articles, or incorporation shall not be changed in this respect without the consent of all the stockholders in writing." This section was amended by the Legislature in the year 1894 (chapter 70, p. 119, Sess. Laws 1894) to read: "Any person who is the holder of full-paid up capital stock of any corporation hereafter organized under the laws of Utah Territory, shall not be liable for any assessments upon such capital stock or for any indebtedness of the corporation, nor shall any assessment be levied upon such capital stock for any purpose whatever, nor shall any such holder be liable for assessments or indebtedness of the corporation, except it shall be provided in the articles of incorporation or the agreement in writing specified in section 2268, subd. 2, of said Compiled Laws, that such capital stock shall be liable for assessments or for the indebtedness of the corporation, then the corporation shall be and is authorized to levy assessments upon such stock, to be collected as in the articles provided. The articles of incorporation, in this respect, shall not be changed without the consent of all the stockholders." The section as amended was not repealed nor modified by the Laws of 1896. This section as amended was substantially incorporated into sections 331 and 354 of the Revised Statutes of 1898, which are as follows: Section 331: "The property of the corporation and the unpaid stock shall be liable for the debts of the corporation; but

the individual property of any holder of fullpaid capital stock of any corporation organized since March eighth, eighteen hundred and ninety-four, or that hereafter may be organized, under the laws of this state, except as otherwise expressly provided in this title, shall not be liable for the corporate obligations, nor shall assessments be levied on such stock for any purpose whatever, except to such extent and in such manner as may be expressly provided in the articles of incorporation." Section 354: "The full-paid capital stock of any corporation organized since March eighth, eighteen hundred and ninety-four, or that hereafter may be organized under the laws of this state, shall not be assessable for any purpose whatever, except to such extent and in such manner as may be expressly provided in the articles of incorporation: provided, that if such stock is made assessable and the manner of levying the assessment is not provided for, it shall be levied in the manner and form hereinafter prescribed." Section 338, Rev. St. 1898, provides: "The articles of incorporation of any corporation now existing, or that hereafter may be organized under the laws of this state, may be amended in any respect conformable to the provisions of this chapter by a vote representing at least two-thirds of the outstanding capital stock thereof at a stockholders' meeting called for that purpose, as hereinafter prescribed: provided, that the criginal purpose of the corporation shall not be altered, nor shall the capital stock be diminished to an amount less than fifty per cent. in excess of the indebtedness of the corporation; and provided further, that the liability of the holder of full-paid capital stock for assessments or for the indebtedness of the corporation shall not be changed without the consent of all the stockholders." In 1903 (Sess. Laws 1903, p. 80, c. 94) the Legislature amended section 338 of the Revised Statutes to read: "The articles of incorporation of any corporation now existing, or that hereafter may be organized under the laws of this state, may be amended in any respect conformable to the laws of this state by a vote representing at least two-thirds of the outstanding capital stock thereof at a stockholders' meeting called for that purpose as hereinafter prescribed: provided, that the original purpose of the corporation shall not be altered, nor shall the capital stock be diminished to an amount less than fifty per cent in excess of the indebtedness of the corporation; and provided, further, that the personal or individual liability of the holder of full-paid capital stock for assessments or for the indebtedness or obligations of the corporation shall not be changed without the consent of all the stockholders." Section 1, art. 12, of the Constitution of Utah, adopted in 1896, is as follows: "Corporations may be formed under general laws, but shall not be created by special acts. All laws relating to corporations may be altered, amended or

« SebelumnyaLanjutkan »