Douglass, 175 Ala. 268, 57 South. 860, 44. L. R. A. (N. S.) p. 164, in which the syllabus states the rule as declared therein as follows: "A judge of limited jurisdiction is not personally liable for issuing a warrant of arrest which he had no authority to do, in a case of which he had jurisdiction of the subject-matter, if some one apparently qualified to do so appeared before him and made the requisite complaint, stating some facts which enter into and may under some conditions, or in co-operation with unstated facts, constitute a criminal offense, or stating some fact or facts which bear general similitude to a fact or facts designated by law as constituting an offense." There are many other cases to the same effect as the above cases, and among these the following may be mentioned: Feld v. Loftis, 240 Ill. 105, 88 N. E. 281; Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137; Bohri v. Barnett, 144 Fed. 389, 75 C. C. A. 327; Robertson v. Parker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. 889; McIntosh v. Bullard, 95 Ark. 227, 129 S. W. 85. person of the plaintiff. It was, as before In the present case, as we have shown, the The case of De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95, cited and relied upon by the appellant, is, in the facts, wholly unlike the case at bar, and is therefore not in point. It appears from the opinion in that case that a complaint was made before the defendant, as justice of the peace, charging the plaintiff in the action for damages against said justice with refusing to return the sum of $20, alleged to have been overpaid said plaintiff by the El Cajon Vineyard Company; that the justice, upon the complaint so made, is-sufficiency of the complaint to state the ofsued a warrant of arrest upon which the fense named therein, the defendant was only plaintiff was arrested and taken before the exercising the powers with which he was insaid justice of the peace, and required to and vested as a judicial officer, and, although to did plead to said charge; that after trial the a trained lawyer the insufficiency of the facts justice rendered judgment that plaintiff re- stated in the complaint to state the offense store said amount of $20, or be committed to thus sought to be charged would readily the county jail for 20 days; and that, pursu- appear, still we must assume, in the absence ant to the judgment so rendered, the justice of a showing of malice or other bad motives issued a commitment and delivered it to an in the act of the defendant in issuing the officer, who executed it by imprisoning and warrant, that in so doing he acted in good confining the plaintiff in the county jail for faith and in the honest belief that the docuthe period of three days. The Supreme ment upon which he issued the warrant was Court held that the complaint stated a cause sufficient in law as a complaint to justify of action in favor of the plaintiff and against that act. And it may with no impropriety the defendant (the justice of the peace) for be added that, while there is no legal predamages for false imprisonment. But read-sumption that the average person selected to ily it will be observed that absolutely no public offense whatever under the law was stated in the so-called complaint filed with the justice against the plaintiff. The justice had no jurisdiction of the subject-matter of the complaint, so far as a criminal charge was concerned. The complaint merely alleged that the plaintiff, by a mistake, had been over-ed to be administered, are called to fill judipaid, and there was no pretense, so far as the complaint disclosed, that he obtained or even retained the amount overpaid through any criminal act on his part. If the so-called complaint disclosed anything at all, it was merely a civil action for money had and received, and obviously the proceeding taken by the justice under the complaint was wholly and entirely coram non judice. It was fill the office and discharge the duties of a justice of the peace is not a lawyer, still, as a matter of very common knowledge, we know that, generally speaking, laymen, without any previous education in the law, and who are not conversant with the technical rules of procedure whereby justice is requir cial positions of inferior and limited jurisdiction, and therefore it is not to be taken as a matter of astonishment that the law, substantive as well as procedural or adjective, is often administered in the inferior tribunals in a very primitive and irregular manner. Hence it may readily be apprehended that it might, and perhaps would, prove to be destructive of an efficient branch of our judicial 181(3)-STOCKHOLDERS— INSPECTION OF BOOKS-BENEFICIAL INTER EST. A bona fide stockholder need not have a beneficial interest in the shares. 5. CORPORATIONS 181(3), 282-STOCKHOLDERS-INSPECTION OF BOOKS-DIRECTORS. Only corporate stockholders may be direc tors, and the fact that shares are transferred in order to qualify a person as a director fails to show that the holder is not a bona fide stock 6. CORPORATIONS ABILITY. 175-STOCKHOLDERS' LI name is personally liable for assessments, etc., 7. CORPORATIONS INSPECTING BOOKS. necessary to promulgate a rule whereby a 14. CORPORATIONS istration of the law. For the reasons herein given, the judgment is affirmed. We concur: CHIPMAN, P. J.; NETT, J. Prior to its amendment in 1917, Civ. Code, §§ 377, 378, making corporate books subject to inspection by stockholders, authorized inspection by a person holding a share in her own name, though the share belonged to another and was transferred simply to qualify her as a director. 8. CORPORATIONS 181(1)-STOCKHOLDERS— INSPECTING BOOKS. Prior to 1917 amendment to Civ. Code, 88 books, and under Const. art. 12, § 14, requiring 377, 378, authorizing an inspection of corporate corporate books to be open for inspection, etc., inspection could not be denied because the stockholder intended to use the information to the corporation's injury. Appeal from Superior Court; San Diego County; C. N. Andrews, Judge. Petition for writ of mandate by Emily B. Webster against the Bartlett Estate Company, a corporation, and others. From a judgment denying her petition, she appeals. Reversed. E. S. Torrance, Charles P. Pritchard, and Warren E. Libby, all of San Diego, for appellant. Sweet, Stearns & Forward, of San Diego, for respondents. CONREY, P. J. The plaintiff appeals from a judgment denying her petition for a writ BUR- of mandate whereby it was sought to compel the defendants to permit the petitioner to inspect and examine the books, records, and journals of defendant corporation. The action was commenced on May 31, 1916, after demand for such inspection and examination, WEBSTER v. BARTLETT ESTATE CO. et al. (Civ. 2243.) (District Court of Appeal, Second District, Cali- which demand was refused by the defend fornia. Nov. 12, 1917.) 1. CORPORATIONS 181(1)—STOCKHOLDERS— INSPECTING BOOKS. A stockholder has both a common law and statutory right to inspect the corporation's books. 2. MANDAMUS ENFORCEMENT. A stockholder's right to inspect the corporate books may be enforced by a writ of mandate. ants. The judgment was entered on the 1st day of July, 1916, and appeal taken within 60 days thereafter. On the 25th day of June, 1907, one share of stock of defendant corporation was issued to appellant, and at all times there129-INSPECTING BOOKS- after said share of stock was in her name on the books of the corporation. Said demand was made by appellant as a stockholder, and is based upon her alleged rights as a stockholder. The answer of defendants to the petition does not deny the facts above stated, but alleges that said share of stock, which was transferred to appellant by one E. Bartlett Webster, was transferred to and held by appellant solely for the purpose of qualifying 3. CORPORATIONS 181(3) INSPECTION OF BOOKS BY STOCKHOLDER-RETROACTIVE OPERATION OF STATUTE. The 1917 amendment to Civ. Code, §§ 377, 378, restricting inspection of corporate books to bona fide stockholders, is inapplicable to a case arising before the amendment. her as a director of the corporation; that she paid no consideration therefor; and that she received said certificate upon the understanding and agreement between her and E. Bartlett Webster that the share of stock was the property of E. Bartlett Webster, and would be returned to him upon demand or upon her ceasing to be a director of defendant corporation. The answer further alleged that if petitioner had made her demand as director of the corporation and had claimed and admitted that she was such director, defendants would have accorded her such inspection and examination, and that her demand was refused because she based her claim of right solely upon the ground that she was a stockholder. The court in its findings of fact declared that said certificate of stock, although issued to and standing on the books of the corporation in the name of appellant, was in reality the property of E. Bartlett Webster, and was held by appellant for him upon the terms and conditions and for the purposes set out in the answer, as above stated; that appellant is not now and never has been, since on or about the 25th day of June, 1917, a bona fide stockholder or the owner or holder of any of the shares of the capital stock of the corporation, "and is not a stockholder of said defendant corporation, Bartlett Estate Company, so as to entitle her to demand or have the right to inspect and examine the books, records, and journals of said defendant corporation." No demand for the return or retransfer of the certificate was ever made by E. Bartlett Webster. At the trial the plaintiff duly made and preserved all legal objections to the evidence of fered by the defendants and received by the court showing the conditions and circumstances under which the certificate of stock was issued to the plaintiff. [1-4] It is not denied, and it may not successfully be denied, that a stockholder of a corporation has the right to inspect the books of the corporation. This is a common-law right which also is recognized by statute in this state and which may be enforced by writ of mandate. Hobbs v. Tom Reed Gold Min. Co., 164 Cal. 497, 129 Pac. 781, 43 L. R. A. (N. S.) 1112. The contention of respondents is that this right is confined to bona fide stockholders; that one who is not the real and beneficial owner of stock is not a bona fide stockholder, even though he holds certificates of stock duly registered in his name on the books of the corporation; and that the corporation has the right to go behind the fact of apparent ownership as shown by the books and may refuse inspection of its books, if the demanding stockholder is not in fact the real and beneficial owner of the shares. Counsel for respondents have quoted to us and used in their argument sections 377 and 378 of the Civil Code, as amended in the current year 1917, whereby the right of inspec scribed as the right of any stockholder, is now given to any bona fide stockholder. Whatever the effect of these amendments may be, they can have no bearing upon this case, for all rights to be determined herein depend upon the law as it was before these amendments were adopted. Moreover, it is well-settled law that one may be a bona fide stockholder without having any beneficial interest in the shares. Royal Consolidated Mining Co. v. Royal Consolidated Mines Co., Ltd., 157 Cal. 737, 110 Pac. 123, 137 Am. St. Rep. 165. [5] Since the defendants by their answer claim that appellant when she made her demand was a director of the corporation, they necessarily admit her status as a stockholder, since only stockholders of corporations may be directors thereof. The mere fact that shares of stock are transferred to a person in order to qualify him to be a director of the corporation does not tend to prove that he is not a bona fide stockholder. In 7 Ruling Case Law, section 413 of the title on Corporations, authorities are cited supporting the rule as stated in the text, as follows: "As a general rule, however, the statutes, charter, or by-laws governing the corporation provide that the directors shall be stockholders, and where such is the requirement it is essential to render a person eligible to the office of director that he be an owner of stock in fact; and while the courts are not disposed to construe such reof stock for the express and avowed purpose of quirement so strictly as to inhibit the transfer qualifying the transferee for election to the office of director or trustee, yet such rule is limited to a transfer in good faith and does not apply to render eligible one to whom stock is transferred solely for the purpose of qualifying him, the stock being immediately assigned back to the true owner in blank, though his name remains on the corporate books as a stockholder." [6] A person who holds shares of stock actually issued to him and duly registered in his name on the books of the corporation incurs definite liabilities to the corporation, as well as to its creditors, even though he in fact holds such stock in trust for other persons. Such stockholder is personally liable to the corporation on account of assessments levied upon the stock. La Habra Oil Co. v. Francis, 169 Pac. 401, decided by this court October 29, 1917. In Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225, it was declared that a trustee must be deemed the legal owner of the stock and "as against the corporation and all the world, except his cestui que trust, no inquiry may be made touching his actions in the premises." According to the provisions of section 322, Civil Code, the creditors of a corporation may not proceed to enforce (under circumstances therein stated) the statutory stockholders' liability against pledgees or trustee, but are limited to proceeding against the equitable owner. But the rule so provided does not apply in favor of one who takes the stock and holds it unqualifiedly in his own name. In Hurl Am. St. Rep. 17, where consideration was given to the terms of section 322, Civil Code, it was held that so long as a stockholder appears as such on the books of the corporation, there being nothing shown thereon to indicate that he does not hold as owner, he is subject to the stockholders' liability to the creditors of the corporation. [7, 8] Obligations and liabilities carry with them concurrent rights. Since a stockholder who holds stock as, according to the findings of the court, the plaintiff held her stock in this case, is liable to pay assessments and is liable to creditors for a proportionate share of debts of the corporation, such stockholder is reasonably and legitimately entitled to the right of inspection and examination of its books and business. The appellant having established her status as a stockholder, defendants were not entitled to impose upon her a condition having reference to another matter, such as that she admit that she was a director of the corporation and make her demand as such director. [jects and purposes are improper, and that the petitioner desires to injure the business of the Constitution and the statute cannot be defeated corporation. The clear legal right given by the by stopping to inquire into motives." That decision was followed by this court in Poor v. Yarnell, 28 Cal. App. 714, 153 Pac. 376. Article 12, § 14, of the state Constitution "for inspection by every person having an inrequires that the corporation books be kept terest therein." While we have based our discussion entirely upon the status of appellant as a stockholder, it may here be worthy of note that immediately prior to the transfer of appellant of said one share of stock sho transferred to E. Bartlett Webster 400 shares of stock of the same corporation; that part of the consideration therefor was paid by giving her his promissory note for $71,200, pledging the 400 shares to her as security for said note; that there is no evidence that said It does not appear, however, that the facts note has been paid or said pledge released. concerning such pledge are shown upon the books of the corporation. The judgment is reversed. We concur: JAMES, J.; WORKS, Judge pro tem. HUFFAKER v. MCVEY et al. (Civ. 2259.) (District Court of Appeal, First District, California. Nov. 14, 1917. Rehearing Denied by Supreme Court Jan. 10, 1918.) 1. APPEAL AND ERROR 757(2)-REVIEW SUFFICIENCY OF COMPLAINT. To warrant an opinion on the nature of the first or the amended complaint, it is necessary that the whole of the complaints be set forth in the briefs, and mere fragments are not suffi2. LIBEL AND SLANDER 70-BOND-STAT cient. UTE. By their answer defendants alleged that the plaintiff's demand was not made in good faith, and was made solely for the purpose of harassing the defendant corporation and said defendant E. Bartlett Webster, and in the hope that she might discover evidence which would be of use and benefit to her in other actions against them. No finding of fact concerning these allegations was made by the court. Counsel for respondents in their brief refer to evidence showing the existence of such adverse litigation, and insist that it tends to show that appellant is seeking to obtain information which she intends to use to the injury of the corporation. They refer us again to the amendment to section 377 of the Civil Code as adopted in 1917, where some provision is made for denial of the right of inspection, upon a satisfactory showing that the stockholder demands the same with intent to use the information to the injury of the corporation. As we have said before, statutory amendments of 1917 are not available for the purpose of this case, and the amendment mentioned would not protect the respondents here, even if the court had found An order dismissing an action for libel and that such satisfactory showing of injurious slander after plaintiff's failure to file the statintent had been made. The indicated evi-utory bond was not an order striking the amenddence could not properly be received or con- such complaint ineffectual. ed complaint from the files, though it rendered sidered in aid of the claimed purpose of defendants. In Johnson v. Langdon, 135 Cal. 624, 67 Pac. 1050, 87 Am. St. Rep. 156, which was a proceeding like that in the case at bar, a similar affirmative defense was offered and the court struck from the answer said affirm-missal, plaintiff appeals. Affirmed. ative portion thereof. This ruling was sustained. The Supreme Court said that: "The great weight of the American authorities is to the effect that where the right is statutory it is not necessary for the petition to aver or show the purposes or object of the inspection. Neither is it any defense to allege that the ob Where the original complaint stated an action for libel and slander, and the amended malicious prosecution, alleged facts sufficient to complaint, though possibly stating an action for constitute an action for libel and slander, it was incumbent upon plaintiff to file the bond required by St. 1871–72, p. 533. -- 3. PLEADING 352 STRIKING AMENDED COMPLAINT Order. Appeal from Superior Court, Alameda Rodolph Hatfield and E. Huffaker, both of Oakland, for appellant. John L. McVey, of Oakland, for respondents. LENNON, P. J. This appeal is from a judgment of dismissal of an action after refusal of the plaintiff and appellant to file a bond as required by the provisions of the libel and slander act. The case, as presented in appellant's briefs does not contain sufficient printed extracts from the record to enable this court to deterImine the character of either the first or the amended complaint. "While the alternative method of appeal permits parties to file typewritten transcripts in lieu of printed judgment-rolls and bills of exceptions, such permission casts no burden upon the appellate courts to examine the typewritten documents in deciding the appeal." California Sav. & Comm. Bank v. Canne, 169 Pac. 295; Beecham v. Burns, 168 Pac. 1058. [1] To warrant an opinion on the nature of the complaints in this case it is necessary that the whole of the complaints be set forth, and mere fragments are not sufficient. [2] However, a cursory examination of the typewritten transcript discloses the following facts: The original complaint, while not a model pleading, is an attempt to set forth an action for libel and slander. The lower court so construed it and ordered the plaintiff to file the statutory bond. Cal. Stats. 1871-72, p. 533. Plaintiff failed to file a bond within the time allowed by the court, but the day after the order plaintiff filed an amended complaint, and two days later filed a motion to vacate the order on the ground that plaintiff had the right under the law to amend his complaint to set forth the nature and purpose of his action, and that the complaint was not one for either libel or slander. On the hearing of the motion an order and judgment was made dismissing the action on the ground that plaintiff had not filed the requisite bond. In our opinion, the original complaint states an action for libel and slander, and the amended complaint, while it perhaps states an action for malicious prosecution, certainly alleges facts sufficient to constitute an action for libel and slander. It was therefore incumbent upon the plaintiff to file the bond as ordered. [3] The contention that the court erred in denying plaintiff the right to file an amended complaint is not supported by the record. The record shows that an amended complaint was filed, and it nowhere appears from the record that the court made any order striking such amended complaint from the files. The only reference to such amended complaint is found in the order dismissing the action after the failure of the plaintiff to file a bond. That order does not strike the amended complaint from the files, although the effect of the order was to render such amended complaint ineffectual for any purpose. Judgment affirmed. We concur: ARDS, J. (Civ. 1744.) FOLEY et al. v. HORNUNG. (District Court of Appeal, Third District, California. Nov. 14, 1917.) 1. NEGLIGENCE 32(2)-INVITEE ON PREMISES-CARE REQUIRED. Where a merchant invites a customer to follow him to his workshop at the back of his store to look at goods stored there, such customer is not a mere licensee, but the merchant must use all reasonable means to make that part of the store safe for one visiting it. 2. APPEAL AND ERROR 1048(1)-HARMLESS ERROR-EXAMINATION OF WITNESSES-REP A remark by the court on overruling an objection to question that the matter is "probably of some importance" could not result in having attached additional significance to the answers, and especially will it be so held where counsel did not see fit to call the matter to the court's attention at the time. 4. TRIAL 295(9)—INSTRUCTIONS CONSTRUED AS A WHOLE-NUMBER OF WITNESSES. Part of an instruction preceded by a proper instruction, that the number of witnesses should not be considered was cured by another clause that where the evidence is contradictory no testimony should be disregarded, but circumstances, as in cases where the number of witnesses on each side is unequal, should be considered. 5. TRIAL 315-VERDICT-"CHANCE." Where jurors disagreeing as to amount of without agreeing to be bound by the result, and verdict arrive at a sum by the quotient method then after considering the result adopt approximately the same sum, the verdict is not one arrived at by chance within Code Civ. Proc. § 657, making such verdicts grounds for new trial. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Chance.] 6. APPEAL AND ERROR 1015(5)-FINDINGS OF FACT-CONTRADICTORY AFFIDAVITS. Where affidavits of some jurors would show that a verdict was arrived at by chance, and affidavits by others denied such, the finding of the court to sustain the verdict will not be disturbed, though Code Civ. Proc. § 657, subd. 2, provides that such conduct may be proved by the affidavit of one juror. Appeal from Superior Court, Kern County; M. L. Short, Judge. Action by David Foley and Mary Foley against Paul Hornung. Judgment for plaintiffs, and defendant appeals. Affirmed. Kaye & Siemon, of Bakersfield, for appellant. Thomas Scott and Rowen Irwin, both of Bakersfield, for respondents. CHIPMAN, P. J. Plaintiffs are husband and wife, and the action is by plaintiff Mary Foley for injuries received by her through the alleged negligence of the defendant. It appears from the complaint that the defendant is a merchant conducting business in the city of Bakersfield in a building situated on Chester avenue. It is alleged that the place KERRIGAN, J.; RICH- of defendant's business consisted of a building, on the ground floor of which his general mer For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |