State ex rel. Hanau v. Cresent Mutual Insurance

Merrick, O. J. This case has been argued before us by the appellant’s counsel, on a question of practice. The relator filed a petition, wherein, after alleging his right as a scrip holder of the company to inspect at reasonable hours, the book containing a list of the holders of scrip, he prayed that the President and Secretary of the company might be ordered to show cause why a mandamus should not issue to compel them to allow him to inspect, at reasonable hours, the books of the corporation. The defendants were ordered to show cause on a day fixed. The defendants filed an exception, and in the event said exception should be overruled, an answer to the rule. It appears that the case was continued and argued from day to day, for four or five days, during the hours allotted by the rules of the court for that purpose, on the exception which was taken under advisement, and that the District Judge, instead of overruling the exception and hearing the parties on the merits of the rule, rendered final judgment, after having held the exception from the 25th day of February to the 16th of March, 1859, under advisement. Appellants counsel contend, that they were entitled to be heard on the merits ; and so it appears to us. The defendants were entitled to a decision upon their exception before they could be compelled to offer evidence under their answer to the merits. The answer contained a general denial, admitted that the plaintiff was a scripholder, and pleaded some matters in avoidance of the plaintiff’s action. The truth of the allegations in the answer, have not been admitted, and however wide the range of argument may have been upon the exception, it does not appear that the District Court has passed judgment upon the whole case, as presented by the defendants in their answer. Final judgment ought not to be rendered against them until they have been heard upon the same. After overruling the exception, that, or another day, should have been fixed for the hearing of the rule on the merits. The answer, as soon as the exception was overruled, was ready to perform its office, and, as it denied the truth of plaintiff’s petition, except as to his ownership of the scrip, the plaintiff could not invoke the aid of the court, without first showing that he had been aggrieved by the action of the company. What was admitted by the exception for the purpose of testing plaintiff’s petition, was denied by the answer. See 2 An. 221, Wood v. Henderson, and Syndics, &c. v. Mayhew, 4 M. 177. It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and that this case be remanded to the lower court for further proceedings according to law; the relator paying the costs of the appeal.