Stedtfeld v. Eddy

*586 GIVENS, J'. Fred H. Stedtfeld, plaintiff-respondent, as a stockholder in the Monte Cristo Gold Mines Company, a corporation, sued on behalf of himself and all others similarly situated for an accounting by Clarence E. Eddy and Juanita M. Eddy, former officers and stockholders of the corporation. Upon failure to appear, the default of the corporation was entered, and the action was dismissed against Clarence E. Eddy. A reference was ordered upon which judgment was entered in favor of the corporation and against appellant Juanita M. Eddy for $22,540.60 and interest, for stock sold by appellant, Juanita M. Eddy, for the corporation and not accounted thereto by her. Appellants demurred to the complaint on the ground, among others, which they consistently urged throughout the trial, that it did not show that respondent had the right to bring the suit because no demand had been made upon the majority stockholders for them to take action, nor was such failure excused. Wunderlich v. Coeur d’Alene Co., 40 Ida. 173, 39 A. L. R. 1052, 232 Pac. 588, quoting with approval from Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827, holds that before a stockholder can bring a suit of this nature, he must, as a condition precedent, prove a demand on the officers, directors and stockholders, or excuse the same. Demand, or excuse for failure to demand relief, of the stockholders, thus being a material fact, was a material allegation, and the demurrer should have been sustained. Conceding that the proof showed a demand on the stockholders, the complaint, being insufficient in this material respect, is insufficient to sustain the judgment. (Walton v. Clark, 40 Ida. 86, 231 Pac. 713; Medling v. Seawell, 35 Ida. 333, 207 Pac. 137; Newport Co, v. Kellogg, 31 Ida. *587 574, 174 Pac. 602; Trueman v. Village of St. Maries, 21 Ida. 632, 123 Pac. 508.) In view of this conclusion, the sufficiency of the evidence will not be discussed. On oral argument appellants presented a question which had not been assigned as error in the briefs, as required by rule 40 or otherwise, and the same will therefore not be considered. (Blackfoot Bank v. Clements, 39 Ida. 194, 226 Pac. 1079; Morton Co. v. Big Bend Co., 37 Ida. 311, 218 Pac. 433.) The judgment is reversed and the cause remanded. Costs awarded to appellant. Wm. E. Lee, C. J., and Budge and T. Bailey Lee, JJ., concur.