Knoll v. Levert

SOMMERVILLE, J. Plaintiffs, alleging themselves to be stockholders of the Shirley Planting Company, and that it was the duty of J. B. Levert, defendant, to call the annual meeting of the stockholders in and for the year 1914, ask that a mandamus issue directed to the said Levert to call the meeting. The petition was subsequently amended so as to make J. B. Levert, president of the Shirley Planting Company, the respondent in the cause, and plaintiffs pray that the mandamus issue to him as president. Defendant excepted to the citation addressed to him as president of the Shirley Planting Company, on the ground that the citation should have been addressed to, and served upon, the Shirley Planting Company, and, for further reason why the alternative writ of mandamus should not be made peremptory, alleged that he was without authority, as president of the board of directors of the said company, to call a stockholders’ meeting, and he set up other grounds of defense in his return. The alternative writ of mandamus was made peremptory, which order, on appeal to the Court of Appeal, was affirmed, and defendant has invoked the supervisory jurisdiction of this court. [1] The charter of the Shirley Planting Company was offered in evidence on the trial; and to that instrument the consideration of the court is confined. No by-laws of the company were offered and filed; and our attention has not been directed to any statute governing the point here involved. Article 2 of the charter provides that the domicile of the corporation shall be in the city of New Orleans— “where all citations and other legal process shall be served upon the president, or, in his absence, upon the vice president, or, in Ms absence, upon the secretary and treasurer, or as otherwise-provided by law.” Article 5 provides: “All of the corporate powers of this corporation shall be vested in and exercised by a board of directors, to be composed of not less than three nor more than six stockholders, the stockholders having the right at each annual election to select such of this number as they may desire, and to elect them for one year, or until their successors may be elected and qualified.” The first board of directors was named in the charter, and it was further provided: “The board of directors named herein shall serve until the first Monday of March, 1914, at which time a new board shall be elected, and a board shall be elected annually thereafter on said first Monday in March. * * * “The board of directors shall have full power [243] to provide tor the general or special meetings of the stockholders and of the board of directors. “All notice of stockholders’ or directors’ meetings shall be preceded by notice. , * ' * * “All notices of stockholders’ meetings shall be by written notice given ten days in advance of the meeting,” etc. The charter does not give to the president of the corporation the right to call meetings of the stockholders; on the contrary, it provides that: “The board of directors shall have power to provide for the general or special meetings of the stockholders and of the board of directors.” And, until the board of directors shall have provided for the general annual meeting of the stockholders of the corporation by resolution, or by by-laws, or otherwise, the power to make a call for such meeting is reserved by the charter to the board of directors. The record does not show that such power was given to the president. The mere fact that Mr. Levert is president, without more, does not imply that he has any greater power than any other director. Although there are some decisions to the contrary, this view is sustained by the overwhelming weight of authority. And we so hold in the case of Brewing Co. v. Canton, 118 La. 823, 43 South. 454, in which opinion we quote from Marshall on Corporations, p. 953, to that effect. In Cook on Corporations (6th Ed.) § 594, it is further observed that, when the charter is silent as to the time and place at which general and special meetings of the stockholders are to be held, notices of such meetings must be given. The charter of the Shirley Planting Company does not fix the time and place of meetings of stockholders, and it clearly provides that “all notices of stockholders’ meetings shall be by written notice,” etc. The charter, therefore, does not contain any notice in it&eif of the hour and place of meetings; and, as “it is a general and settled rule of law that notice, in some way or other, must be given to every person entitled to be present at a corporate meeting,” notices to stockholders to attend an annual meeting of the stockholders of the Shirley Planting Company should have been issued by the board of directors. Cook on Corporations (6th Ed.) §§ 593, 594. The charter of the Shirley. Planting Company specially provides that “all the corporate powers of the corporation shall be vested in and exorcised by a board of directors,” which excludes the power of the president to call a stockholders’ meeting, in the absence of any authority given to him by the board of directors to call such meeting. If there was any resolution of the board of directors, or if there is a by-law, to the effect that the president should call the annual meeting of stockholders, it was the duty of the plaintiffs to have offered it in evidence. Dusenberry v. Looker, 110 Mich. 58, 67 N. W. 986. It therefore follows that, as it was the duty of the board of directors of the Shirley Planting Company to call the annual meeting of stockholders, the mandamus should have been directed to said board, and not to the president of the company. Cook on Corporations (6th Ed.) § 593, and authorities cited there. [2] Turning now to a consideration of the service of citation, which was originally upon J. B. Levert personally, and, under a supplemental petition, upon him as president of the Shirley Planting Company, it is defective in a suit against the corporation or the board of directors; the citation should have been 'addressed to the corporation, and served on the president, or upon the board of directors. State ex rel. New Iberia Telephone Co. v. Judge, 50 La. Ann. 671, 23 South. 871; Bank of Monroe v. Ouachita Valley Bank, 124 La. 798, 50 South. 718, 134 Am. St. Rep. 518. It is therefore ordered, adjudged, and decreed that the judgments of the Court of Ap [245] peal and of the civil district court for the parish of Orleans, division B, are reversed and set aside; the preliminary writ of mandamus issued in this cause is recalled; and the suit is dismissed at the cost of plaintiffs in both courts.