SMITH, J. This case is before us upon rehearing, and will be.found reported in 22 S. D. 598, 119 N. W. 990. When the former decision was rendered, there was no’ brief on file for respondents. Subsequently respondents petitioned for a rehearing, which was granted.
One ground upon which such petition was based was that through inadvertence of their former counsel respondents were not informed of any proceeding in this court prior 387 to the rendition of its decision, and thus were deprived of an opportunity to be heard.
In preparing the decision for publication in our staté reports, the brief of counsel for respondents on rehearing, wherein it is contended this court was without jurisdiction to review that part of the judgment of the court below directing defendant Christian L,.
Jensen to pay the telephone company the sum of $183.33 f°r the use-and benefit of the company’s stockholders, and that this court erred in basing its decision upon a finding of fact not pleaded, was inserted, as if such brief had been on file when such decision was rendered. In fact, there was no brief on file of any description on behalf of respondents, and such contentions were not then considered by this court.
However, in the view we take at this time, these "matters become immaterial, and need not be further noticed. This appeal is before the court upon the judgment roll alone, consisting of pleadings, findings of fact, conclusions of law, and the judgment. The pleadings .are very voluminous, and only certain portions thereof need be referred to for the purpose of such matters as we deem decisive of the appeal.
The complaint, among other things, alleges that said Jensen converted the funds of the company to his private use; that the books of the company have been imperfectly kept, falsified, altered, changed, and rewritten by the defendants,, in consummation of a fraudulent plan and design to misappropriate the property and income of the corporation to the detriment of its stockholders; that one of the original books of the company has been removed or destroyed, and further alleges that, by reason of such fraud, mismanagement, and dishonesty of the defendants, the property, franchises, and business of the defendant company are being lost, destroyed, and damaged for the express purpose of wrecking the business of the company, and depreciating the value of its stock in order to deprive the stockholders and particularly these plaintiffs thereof, and to enable the defendant Christian T. Jensen to appropriate the property and income thereof to his own use and personal advantage.
All these allegations of the complaint and numerous others of a similar character are specifically denied by the answer.
No findings of 388 fact appear to have been made by the trial court with reference to these alleged fraudulent acts of the defendants, but, as no question is raised in appellants’ brief as to the failure of the court to make findings upon the various charges of fraudulent conduct, they will be deemed abandoned by appellants, as well as for the reason that the findings are entirely silent upon them; and, no evidence having been preserved in the record tending to prove such allegations, it will be presumed that none was offered.
No question is raised as to the sufficiency of the evidence to-support the finding’s of fact.
From the finding's it appears that the People’s Telephone & Telegraph Company was a corporation organized under the laws of this state in the month of October, 1895; that the defendant Christian L. Jensen has at all times since been the president, general manager, and one of the directors thereof; and that the defendant Fillie M. Jensen, wife of Christian F. Jensen, was elected treasurer of said company in December, 1895, and has been such treasurer since that time; that the shares of stock owned by the plaintiffs were purchased from the defendant Christian D. Jensen subsequent to the organization of the corporation, upon Jensen’s representation that he was constructing a telephone plant at Hot Springs which was about completed; that the corporation was out of debt; that he would have the management thereof; and that he promised and represented to the plaintiffs that the cost of running and operating the plant would be no more than $50 per month, and that that -sum would cover all expenses, including his own compensation as manager.
The ■court further finds that Jensen and his wife at all times have had entire control and management of the business of the defendant company; that no election of officers or directors has been held since the organization of the company; and that no notice of any regular or special meetings of the stockholders or directors has been given the plaintiffs; that only two- meetings of the directors have been held since December 1, 1895; that the by-laws require the treasurer of the company to furnish a bond in the sum of $2,000, which has never been furnished; that the funds of the defendant corporation have never been regularly deposited in any 389 bank, but have been mingled with the personal funds of the defendant Christian L. Jensen, and paid out by him as treasurer, and the books of the company have been kept by Lillie M. Jensen, his wife; that no trial balance has ever been made; and that the books were never closed or balanced to show the amount of money on hand at any given time, except that the receipts and disburse-, ments were computed up to the date of the trial, April 17, 1902, and show a balance on hand of $570.70.
The findings further show that a large portion of the receipts of the corporation were collected by the defendant Jensen in merchandise, goods, and services, instead of cash, all of which were charged against his account on the books of the company, but the findings do not show that the books of the corporation were falsely or fraudulently kept, nor that any of the charges made therein were fraudulent or excessive, or that any act of the defendants was done with fraudulent intent.
The findings further disclose that the earnings and receipts of the company from January 20, 1896, to April 1, 1902, were $8,129.60 and the total disbursements during said time were $7,55945. The corporation is not shown to be insolvent.
The findings further show that the defendant Christian L. Jensen charged for his services as manager the sum of $60 per month up to June 12, 1897, and from June 12, 1897, to the 26th day of June, 1901, charged the sum of $75 per month for such services, which the court finds to be a reasonable compensation; also, that the defendant charged the sum of $320 for fuel and $140 for rent from the 12th day of June, 1897, to the 26th day of June, 1901, but the court does not find that the items so charged were excessive or fraudulent in character, nor is there any finding that the defendant Jensen acted dishonestly or fraudulently in any respect in the discharge of his duties as general manager of the business of the corporation, nor that the books were altered, falsified, or fraudulently kept.
The question upon this record is whether these plaintiffs as stockholders have any right in themselves to maintain this action, the purpose of which is to require the defendant Christian L-Jensen to return to the corporation all moneys alleged to have 390 been paid out by him as manager in excess of the sum of $50 per month.
Under these findings of fact, the right of plaintiffs to maintain this action, if it exists at all, must be founded- solely upon the alleged promises or representations made by the defendant Jensen to them at the time they became purchasers of stock.
I do not know of any rule of law which would authorize these plaintiffs to maintain an action of this character in the absence of a finding of dishonest or fraudulent conduct or mismanagement of the affairs of the corporation on the part of the defendants in the discharge of their duties as officers and manager of the corporation.
By the judgment of the court the defendant Christian U Jensen was required to pay over to the defendant corporation the sum of $183.33, being the amount charged by him as compensation for his services prior and up to June 12, 1897, while as to the other alleged overcharges the complaint is adjudged to be dismissed.
Neither the plaintiffs nor the defendants have appealed from the judgment awarding the recovery of $183.33, but the plaintiffs are here contending that the defendant Christian L. Jensen upon these facts should have been required to pay over to the defendant corporation a sum largely in excess of the amount of this judgment, to-wit, the sum of $2,205.33.
While it is conceded that this court cannot modify a portion of a judgment from which no appeal has been taken, and waiving the contention that there is no appeal before this court as to the balance of the sum claimed, yet the question as to the right of the plaintiffs to maintain this action in equity for the purpose of requiring the defendant Jensen to pay over to the corporation the additional sum claimed may be assumed to be before this court upon this appeal.
As has been observed, the corporation was completely' organized, its officers elected, and stock being issued at the time these plaintiffs became stockholders. It is apparent, therefore, that the defendant Christian L. Jensen in no sense bears the relation of a promoter, either to the corporation or the purchasers of stock.
Under these conditions, the plaintiffs as stockholders cannot maintain an action in equity in the absence of evidence or findings supporting the allegations of fraudulent mismanagement or mis 391 conduct of the affairs of the corporation. For that reason alone, and without regard to other questions raised upon this appeal, the judgment of the trial court should be affirmed.
Loading…