페이지 이미지
PDF
ePub

Cuyahoga Common Pleas.

a

not be called a wooden building, it being sheeted over with steel, I do not know ; I am free to say that it would puzzle me to ascertain whether that was a wooden building or not. It might be called a wooden building. You might make the steel a little thicker and it would be a wooden building whose outer wall was of iron ; and yet it might be a wooden building, in all that would be essential to make up that term and fulfil the conditions of that term. Just what is meant by a wooden building ? How much of the building must be of wood and how much of iron, to make it a wooden building ? Where will you put the iron in to make it not a wooden building? If putting some iron in a building will make it lose its character of a wooden building, why can't you put it inside as well as outside ? Because you are dealing now with the structural character of the building, and what difference does it make whether it is inside or outside, where you put the iron, to make it lose its character of being a wooden building. If you say any building any substantial portion of which is made of iron, stone or brick, ceases, by reason of that, to be a wooden building, why not put it inside as well as outside, on top as well as on the bottom ?

Now, the statute did not intend anything of that kind. The statute was made to protect people from danger and property from injury by fire, and it authorized the council to act with reference to persons' right to use their property and construct buildings upon it, in that direction and in that direction only, by specifying that whatever you made your buildings of, if it exceed ten feet in height, whatever the character of the structure might be as a structure complete, its outer wall, to protect from fire and the spreading of fire from within to without and from without to within, should be of one of these various materials which they deem would accomplish that end.

I think on both these grounds that this ordinance is invalid. If they desire to protect their property, I think they should first procure the right, and then pass an ordinance which provides some of these things which the statute authorized them to provide with respect to what the statute authorizes them to control, to-wit, the outer walls.

There are other questions in this case, but it is not necessary to pass upon them, as these determine it.

A restraining order was granted pending the hearing, and then by agreement of parties it was submitted finally upon the testimony as taken, and there has probably been no disposition in the case on the part of any one but just to get at the rights of the various parties in the case and to have them adjudicated for the benefit of all concerned. think the petition should be dismissed.

E. J. Blandin, for plaintiff.
N. M. Flick, for defendants.

Fitch v. Carriage Co.

DISSOLUTION OF CORPORATIONS.

(Cuyahoga Common Pleas, 1900.] H. J. FITCH ET AL. V. SPRAGUE CARRIAGE CO. ET AL. APPLICATION FOR DISSOLUTION OF CORPORA TION-PRACTICE.

Where a petition for the dissolution of a corporation, on the ground that it is

for the best interests of the stockholders, and for an order under sec. 5672, Rev. Stat, requiring directors to file inventories, accounts and statements, is opposed by otier stockholders, denying the allegations of the petition, the court should give the parties an opportunity to be heard before making any

order. STONE, J.

The case of Herman J. Fitch et al. against the Sprague Carriage Company is before the court on an application, or motion, to require the defendant, or the officers of the defendant for the defendant properThe Sprague Carriage Company being an incorporated compauy-to file in court inventories, accounts, and statements required by sec. 5652, Rev. Stat.

The suit itself is one seeking the dissolution of the defendant company, the Sprague Carriage Company. Originally when the petition was filed, application was made to have the case sent to a referee, under sec. 5654, Rev. Stat., and the former application was made under sec. 5651, Rev. Stat., as I understand it, and the matter was heard before Judge Lamson-one phase of it—and I think a demurrer, possibly, was heard by Judge Neff as to the sufficiencies of the petition. At all events when the original application was made before Judge Lamson, under sec. 5651, Rev. Stat., he overruled or denied the application upon the ground that the petition was insufficient and did not state a cause of action in compliance with sec. 5651 ; and his opinion given at some length is before me.

After some other preliminary matter, at the hearing of the demurrer to the amended petition, I think by Judge Neff, it was overruled, and the case was presented again to me, as I have stated, upon an application now not made under sec. 5651, but under sec. 5673; that section giving to one-fifth of the stockholders of certain incorporated companies the right to go into court and demand a dissolution of an incorporated company--of a "manufacturing or mining company. It does appear affirmatively from the petition that plaintiffs are at least owners of one-fifth or more of the paid up stock of the corporation, and therefore, if they make a case coming within the provision of this section, they would be entitled to the remedy, and to the relief contemplated by this section and others to which reference is made.

The Sprague Carriage Company is a corporation organized under the laws of this state, doing business in Berea, engaged, as I learned from an inspection of the papers and the statements of counsel, in the

Cuyahoga Common Pleas.

buying and selling of vehicles, agricultural implements, bicycles harnesses, and all things connected therewith. It does not appear that they are actually engaged in the manufacture of any of these things, but are dealers in them, but incorporated nevertheless as a manufacturing company.

Objection is made to this application, that is, the application to require inventories, accounts and statements of the business of the company to be filed, because, if, the application is granted at this time, then, under sec. 5654, Rev. Stat., which provides that " upon such petition, accounts, inventories, and affidavits being filed, an order shall be entered requiring all persons interested in the corporation to show cause, if any they have, why it should not be dissolved, before some referee or master commissioner oppointed by the court, and to be made in the order, at a time and place therein to be specified, not less than three months from the date thereof; and a notice of the contents of such order shall be published once in each week, for three weeks successively, in some newspaper published and of general circulation in the county wherein the principal place of the business of the corporation is situate.” Now, it is said that if this order is granted, then, under this section, the court is required to make this reference, and the contention of the defendant is that before any such order is made they ought to have and are entitled to have a hearing in some way, upon the question whether that order ought to be made. The statute is silent upon the subject. The section reads as I have just read it, and it would appear to show, or authorize the appointment of a referee simply upon the filing of the petition and the compliance with the order requiring inventories, accounts, and statements, required by sec. 5652, Rev. Stat., to be filed, and when that is done then the court must grant this application and have the case heard before a referee.

I have examined this question with some care because it presents an interesting one and one, as far as I know, that has not been before the court here; at least my attention has never been called to a similar case.

I will read part of sec. 5673, Rev. Stat. : “When the stockholders owning one-fifth or more of the paid up stock of a corporation organized for manufacturing or mining, file in the office of the clerk of one of the courts mentioned in section 5651 their petition, and the courts named there are the court of common pleas or the superior court—"that the corporation is insolvent or that the dissolution thereof will be beneficial to the stockholders, or that the objects of the corporation have wholly failed or been entirely abandoned, or that it is impracticable to accomplish such objects or that the profits of the business are being diverted from the best interests of the stockholders equally, etc., etc., and that they therefore desire a dissolution of the corporation, the court shall if it deem it beneficial to the interest of the stockholders, make an order

Fitch v. Carriage Co.

requiring the officers of the corporation, within a reasonable time, to file in court the inventories, accounts and statements required by section 5652, and upon the filing thereof che court shall proceed as provided in section 5654.".

An inspection of this petition shows that the only complaint they made, or the only ground they allege as the basis for demanding a dissolution of the firm is this: That the dissolution thereof will be beneficial to the stockholders. It is not stated, and it is not claimed that the objects of the corporation have failed or have been abandoned, or that the corporation is insolvent, or that the profits of the business are being diverted from the best interests of the stockholders equally, except it is stated in the petition, that the officers, or those in charge of the business, and who hold a majority of the stock and therefore have control, have agreed among themselves to divide the profits among themselves by way of salary and compensation for services rendered, or which they are pretending to render. That statement is made in addition to the one that I have named, that the dissolution would be beneficial to the stockholders. When the petition was filed it was held originally that it was insufficient. Since that time ansamended petition has been filed. So that taking the petition, and the amended petition together, I am not prepared to say but that it makes a cause of action in compliance with the requirements of the section of the statute.

The only question then is: What is the procedure that is required? The plaintiff's motion-since it is asked under sec. 5652, Rev. Stat.-is to require the defendant to file in court the inventories, accounts and statements required by sec. 5652. That is, they shall annex thereto, first, a full, just, and true inventory of all the estate, both real and per. sonal, in law and equity, of the corporation, and of all the books, vouch. ers, and securities relating thereto. Second, a full, just and true account of the capital stock, if any, of the corporation, specifying the names of the stockholders, their residence, when known, the number of shares belonging to each, the amount paid in upon such shares respectively, and the amount still due thereon. Third, a statement of all encumbrances on the property of the corporation, and all engagements entered into by it which have not been fully satisfied or cancelled, specifying the place of residence of each creditor, and of every person to whom such engagements were made, if known, and if not known, the fact to be so stated; and the sum owing to each creditor, the nature of each debt or demand, and the true cause and consideration of such indebtedness.” The motion is to require that sort of a statement to be made by the officers of this company. The question is: Shall the court make that order now upon the petition and amended petition without any other matter before it? The defendants say they ought to have an opportunity to be heard upon this proposition. The contention of the plaintiffs is that they have no right to be heard now; their opportunity to be heard,

Cuyahoga Common Pleas.

[ocr errors]

and to be heard fully, is when the case is in the hands of the referee ; that is, if the petition complies with the statute, and the court makes this order, and the investigation is before the referee, and not before the court, and that that gives them full opportunity for their day in court.

It is said that defendants desire to take issue and want to file an answer in this case, and the claim on the other hand is that the statute makes no provision for an answer; makes no provision for an issue. The question is made upon the petition itself, and requires no pleading. I apprehend no pleading would be essential probably in the matter of the hearing, because the question arises, after all, whether the corporation is in the condition that it is claimed ; if not, the petition would not be granted.

My attention is called to Armstrong, Recr., v. Brewing Co., 53 Ohio St., 467. It don't present this question, that is, the question of pleading at all. Error was taken from the circuit court, and the only question that was concerning the parties in the Supreme Court was as to whether the order made was an order affecting a substantial right in review of error. The court below had made an order requiring the inventories to be attached and they took exception to that. The court said that it

. wasn't an order affecting anybody's substantial rights, and therefore was not appealable, or error would not lie, within the discretion of the court. But I notice in examining the decision-the opinion which was rendered by Judge Spear, that in that case an answer was filed, and alter the answer was filed two of the petitioners appeared in court and asked to withdraw as plaintiffs, and that application was refused. Another stockholder applied for leave to become a plaintiff and filed an additional petition which was allowed, and a motion was made by the defendant to dismiss for want of jurisdiction, which was overruled. A demurrer by the defendant was overruled also and motion to strike that pleading off. A demurrer by plaintiffs to parts of the amended and supplemental answer by defendants was sustained. To all these rulings the defendant preserved exceptions. The court, after hearing and consideration made the following order:

" It is now ordered that the officers of said defendant file a just and true inventory of all the estate, both real and personal, etc."

That is, made the order requiring them to file in court those things required by sec. 5652, Rev. Stat., a full, just and true inventory of the estate, etc., etc.; and that, it is to be observed, was the order after hearing and consideration. Just what a hearing was possible does not appear fully in the case itself. But the language used by the court would indicate that a hearing was had, and probably some evidence taken on tlie question as to whether the order should be made.

Now, note the language that is used in this statute : " When the stockholders owning one-fifth or more of the capital stock paid up"and it is averred here that the stock is paid up-—"file their petition con

« 이전계속 »