Moyle v. M. Landers's Administrators

Fox, J. — This is a bill in equity, brought by two stockholders of the defendant the Andes Silver Mining Company, against the directors of said company, and certain others, for an accounting, and the recovery, for the benefit of the company, of moneys of the corporation alleged to have been fraudulently misappropriated by the other defendants. The judgment is on demurrer to the fourth amended complaint, from which the plaintiffs appeal. The complaint is a model of obscurity. If it were again amended, and carefully pruned of much of its verbiage in the way of recital and repetition, and reduced to about one third its present volume, it would be much more intelligible, and probably would not then invite demurrer; at least, it would not be as likely to induce a sustaining of the demurrer. A careful analysis of the complaint, however, shows that each of the two counts thereof contains allegations of fact sufficient to constitute a cause of action in favor of the company against the other defendants; that the plaintiffs are, and have been during all the times mentioned in the complaint, stockholders in the corporation; that the facts and circumstances are such as would make it useless to apply to the directors to have the action brought in the name of the corporation, and such as to authorize the plaintiffs to bring and maintain the action in their own names for the benefit of the corporation; that all persons who are not plaintiffs are made defendants who are necessary parties to the action, and that none are made defendants who are not proper parties; that if the facts stated are true, the action is not barred by the stat [583] ute of limitations; and that the complaint, though multifarious and obscure, is not ambiguous and unintelligible in the particulars specified in that branch of the demurrer. The demurrer, therefore, should have been overruled, with leave to the defendants to answer. A point is made by appellants that the plaintiff Boiling has been made such since the filing of the original complaint. The record does not disclose such to be the fact; but if it is, the presumption is, that he was made so by leave of the court; and there is no legal objection to his being joined as plaintiff, as the complaint shows that he was from the beginning, and still is, a stockholder, and the action'was brought on behalf of all stockholders who might see fit to join as plaintiffs therein. Judgment reversed, with directions to the court below to overrule the demurrer and allow the defendants to answer. Paterson, J., McFarland, J., Sharpstein, J., Beatty, C. J., and Thornton, J., concurred.