Beckett v. Houston

Elliott, J. It is insisted that the court erred in overruling the demurrer to the information. One objection urged is, that the information should have been filed by the prosecuting attorney.' "We do not think so. It is provided by statute that the information may be filed by the prosecuting attorney, upon his- own relation, whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority; “ or by any other person on his own relation, whenever he claims an interest in the office, franchise, or corporation which is the subject of the information.” Here the plaintiffs were stockholders in the corporation, and claimed to have been legally elected directors thereof, but were prevented from exercising the same by the usurpation thereof by the defendants, and, under the [398] statute, the information was properly filed by them on their own relation. 2 G. & H. 328, sec. 750. It is contended that the common pleas court has no jurisdiction in such cases. The 44th article of the. code, which relates to informations in civil cases, does not directly confer jurisdiction thereof on the court of common pleas, but it does confer jurisdiction on the circuit court; and, looking to the provisions of that article alone, it might well be claimed that the court of common pleas is not invested with jurisdiction. But it is a civil case, and the act of 1859 provides, that “in all civil cases, except for slander, libel, breach of maz’riage contz’act, and when the title to real estate shall be put in issue,” &c.,. “ the court of common pleas shall have concurrent jurisdiction with the circuit court.” 2 G. & II. 22, sec. 11. Such informations az’e not within the exception contained in the section, and jurisdiction thereof is, therefore, cleaz-ly conferred on the court of common pleas. The information is further objected to because it does not allege that Houston held certificates of stock entitling him to more votes than were allowed by the judges of the election. The statute declares, that each stockholder in such coz’porations “ shall have one vote for each share owned and held by him for ten days previous to the meeting of the coz’poration.” 1 G. & H. 268, sec. 2. A certificate of stock is not necessary to constitute a stockholder, it is only the evidence of stock, and we are not aware of any provision of law inquiring that the owner of stock should have a certificate thereof to entitle him to vote at an election for diz’ectoz’s of the coz’poz’ation. The next error complained of is the sustaining of the demurrer to the second, third, fouz-th, and fifth paragraphs of the answer. The second and third paragraphs were, in effect, mere denials of a fact alleged in the information, and, as a general denial was filed, might properly have been rejected on [399] motion; and as the appellants were not injured by the sustaining of the demurrer to them, they cannot ask a reversal of the judgment on that account. The fourth and fifth paragraphs may be examined together. The by-law of the company set up in the fourth paragraph, limiting the number of votes of a stockholder to less than one vote for each share owned and held by him, was in direct violation of the second section of the act “establishing general provisions respecting corporations” (1 G. & H. 267), which governed the light of the stockholders in the election referred to. The fact that this company was orignally organized under a special charter can have no influence on the question; when it abandoned the special charter and adopted the general law it became subject to all its limitations and provisions in the same manner and to the same extent as though it had been originally organized under that law. The other allegations in these paragraphs simply deny certain facts alleged in the complaint, or information, and what has been said in reference to the second and third paragraphs applies alike to the allegations referred to in the fourth and fifth. The real question involved in the case was, whether the appellees, and not the appellants, were legally elected directors of the company, which depended on the further question, whether Houston was entitled to one vote for each share of stock owned and held by him, or to only ten votes for the whole amount of his stock. And whether the elec-' tion was in fact held by four of the appellants, as alleged in the information, or by the two persons named in the answer, was wholly immaterial. Numerous other errors are assigned, on overruling the motion for a new trial, which embraced thirty-nine specific causes, one of which is, that the finding is not sustained by the evidence. The others relate to the admission of evidence over the appellants’ objections, and to the rejection of evidence offered by the appellants. The evidence covers [400] several pages of a record, in other respects voluminous. No abstract is famished of the evidence, or of other parts of the record involved in the remaining assignments of error, as required by the rules of this court, and we therefore decline an examination of them. . B. F. Glaypool, for appellants. J. G. McIntosh, for appellees. The judgment is affirmed, with costs.