Reich v. Rebellion S. M. Co.

EMERSON, J.: In his complaint the plaintiff alleges, in substance, that he was the owner of undivided feet in one of a.number of mining claims which the owners were desirous of consolidating in a corporation, and which were deeded to and formed the capital stock of the defendant corporation; that before, and in order to facilitate the organization of the corporation, he joined with others and deeded his interest to defendant Shields, in trust, that he should deed the same to, the corporation when formed, and should take the number of shares to which each was entitled in the name of each individual owner, according to their respective interests; that said Shields did deed to the defendant corporation after its organization; that at the time of the incorporation of the defendant company the terms of the trust deed to Shields was known to the incorporators; and then sets out the number of shares the owners, of each set of mining claims, there being two groups of them, were to have, and which .is not material to mention here; and then alleges that in the articles of incorporation no shares were allotted to him; that since the incorporation he has received seven hundred and fifty shares; that after taking out ten per cent of the number of shares for working capital, according to agreement, he is yet entitled to a large number of shares; that he has demanded of the president of the corporation to be informed as to the division of the shares of said corporation; that the information has been [257] denied him; that a great proportion of the shares of the corporation have not yet been issued, but remain in the office of the defendant corporation unissued; and prays that defendant may disclose and discover what consideration certain persons named, who were the other owners in the group of claims in which the plaintiff was interested, paid for the shares of stock assigned them, and how many feet were owned by each in any of the mines so incorporated; that defendant may be compelled to issue to him one thousand nine hundred and fifty shares of its stock; or in case of their inability, in consequence of sale or disposal, that plaintiff be allowed compensation for the same; and that defendant may be enjoined from selling, disposing, or issuing any further shares of stock until the further order of the court. The defendant corporation demurred and answered at the same time. The demurrer was general, that as to that defendant it did not state facts sufficient to constitute a cause of action. The defendant Shields filed a separate answer. It is unnecessary to set out the answers. It is sufficient to say that in our judgment each contained denials of at least some of the material allegations of the complaint. The demurrer of the defendant corporation was sustained, yet the record discloses that the parties proceeded to a trial upon the complaint and answers as though there had been no demurrer. The issues were tried by the court, and without making or filing any findings of fact and conclusions of law, judgment was rendered for the defendant, and the plaintiff brings this appeal, alleging as error the sustaining of the demurrer, rendering judgment without findings, and claims that he should have judgment upon the pleadings. As to the latter, it is sufficient to say that material issues were raised by the answers, and hence he is not entitled to judgment on the pleadings. The demurrer was improperly sustained. The complaint, especially in view of the relief asked, sets out a case with a sufficient degree of certainty to enable the defendant to know the precise grounds upon which it is asked, and states a case in which the corporation is a necessary party defendant. The shares of stock which the plaintiff claims he is entitled to are alleged to be in its possession, and he asks it to account [258] to him for them, and to be enjoined from issuing and disposing of them. Tbe court, by any order it might make, could not reach the unissued shares of stock except by making the corporation a party. If the appellant sustains by sufficient proof the allegations of his complaint, he is entitled to the relief asked. In the case made by the complaint the corporation and Shields are properly joined as defendants. Under the one hundred and eightieth section of the practice act, in trials of issues of fact by the court, written findings of fact and conclusions of law, separately stated, must be made and filed before any judgment can be entered. They are the foundations for the judgment, and are as necessary to precede any judgment as a verdict in case of trial by jury. Under our statute there is no presumption in the absence of findings, when issues of fact are tried by the court without a jury. The judgment of the lower court is reversed and a new trial ordered. Hunter, C. J., and Twiss, J., concurred.