Stovell v. Alert Gold Mining Co.

Mr. Justige Steele delivered tbe opinion of. tbe court: Claiming to be tbe owner and entitled to tbe immediate possession of certain personal property, consisting principally of its record books and seal, Tbe Alert Gold Mining Company brought suit in replevin for tbe recovery of tbe possession of tbe property, and for damages for tbe detention of tbe- same, against John D. Stovell, wbo, it was alleged, wrong [82] fully detained it and refused to deliver it upon demand. The answer avers that defendant, Stovell, is the duly qualified and acting secretary of the company, and as such, under the statutes of the state and the by-laws of the company, is the proper custodian of its record books and seal, and that said property was in the possession of the company at the time the suit was instituted. The replication denies that the defendant is, or at the time of the commencement of the suit was, the secretary of the company, and denies that the company was in the possession of the property, through its secretary or otherwise, at the time of the commencement of the suit. A witness for the plaintiff testified that the property in question was the property of the corporation; that he was a director and the general manager, and had made a demand upon the defendant for the property, and that defendant had declined to deliver it to the company. After motion to strike out all the testimony was denied, plaintiff rested. The defendant offered no testimony. Judgment was rendered for the return of the property, and the defendant appealed to the court of appeals. The appellant contends that the court erred in appointing a custodian of the property pending the litigation. We shall not discuss the question raised, for the reason that the order made did not determine the rights of the parties. It is contended that, as the secretary of the corporation is by law made the custodian of the records and seal, he alone is authorized to bring a suit for the possession thereof. It is entirely probable that the secretary of a corporation could maintain a suit of replevin to recover possession of such of the company’s property as he is entitled to the possession of, but as the property of which he is the custodian is [83] the property of the corporation, we know of no reason why the corporation itself may not maintain an action to recover its property. We think there is nothing in the defendant’s contention, and that the suit was properly brought by the corporation. It is next contended that the real controversy was over the office of secretary of the company, and authorities are cited holding' that the right to an office cannot be tried in an action of replevin. There is no such question presented by the record. It does not appear from the testimony that any one held the office of secretary of the corporation. The defendant alleged in the answer that he was then, and was at the time of the bringing of the suit, the secretary of the-company, but this was denied by the replication. The plaintiff proved that the property belonged to the corporation, that delivery thereof had been refused after demand, and rested. The defendant did not cross-examine plaintiff’s witnesses, and offered no testimony; and there- was no question of the kind now raised presented to the trial judge. It is next contended that the court received incompetent and secondary evidence. The court, over the objection of the defendant, permitted a witness to testify that he was an officer of the corporation, and that a demand was made by him for the delivery of the property. The objection was that the records were the best evidence of who the company’s officers were, and that no authority from the board of directors for making the demand was shown. The-position of counsel is untenable. The title to the office of manager was not in dispute; and the authorities are numerous, when the title to an qffice is involved only incidentally, that parol proof is not objectionable, and that the fact of the existence of the corporation, or the fact that one is an officer of the [84] corporation, may be proved by one who knows the fact. The manager is presumed to have acted with the authority of the corporation in making demand for the possession of its property, and there was nothing shown which overcomes this presumption. There being no error disclosed by the record, •the judgment is affirmed. Affirmed. Chief Justice Gabbert and Mr. Justice Campbell concur.