CLEVELAND ROLLING-MILL CO. tJ. TEXAS
& ST. L. RY. CO.'
(Oircuit Oourt, E. D. Missouri. April 27, 1885.)
PRACTICE-ORDER TO FURNISH LIST OF STOCKHOLDERS-REV. ST. 'Vhere a creditor of 8 corporation has obtained judgment and
had execution issued against it, and the execution has been returned nulla bona. without any demand having' been made upon the officer in charge of the company's books, for a list of the names. places of residence, etc., of the stockholders liable for unpaid balances upon their stock, this court will not make a peremptory order on such officer to furnish such list.
Mo. § 737.
At Law. Fisher dRowell and Ira O. Tet'ry, for plaintiff. Phillips Stewart, for defendant. Dyer, Lee Elles, Broadhead dHae1t8sler, and Boyle, Adam' <t MeKeighan, for stockholders. TREAT, J. On application of plaintiff for peremptory order on J. W. Paramore and A. C. Stewart, respectively president and secretary of defendant company, to furnish a list of the names, etc., of stockholders. It appears from the records in the case that no demand had been made by the marshal, holding the execution, for such list. There is a recital to that effect in the application of February 13th, last, for a rule on the respondents, but there is no return on record thereof. Since the argument on this motion and evidence submitted, a return of the execution nulla bona has been filed. The "argument before the court proceeded to a large extent as if no such return had been made. It now appears that execution was duly issued; and indorsed thereon is a return of nulla bona, January 12th, last, not filed, however, until the twenty-fourth inst. By the statutes, it was necessary, as preliminary to the summary proceedings contemplated against stockholders, that execution should have issued, and an order of court had against the stockholders, respectively, etc. Section 737, Rev. St. Mo., requires "the clerk or other officer having charge of the books of any corporation, on demand of any officer holding any execution against the same, shall furnish the officer with the names," etc. From the record, the officer holding the execution in this case never made the demand authorized upon either of the respondents. This proceeding is based upon the fact of such demand and refusal to comply therewith. As no such demand is shown, the rule must be discharged. The evidence sufficiently discloses that, under the requirements of law, custody of the stock-book is subject to the control and in charge, lawfully, of the respondents. Hence, if the demand had been made by the marshal when holding the execution, and they had failed or refused to comply therewith, a peremptory order against them would be granted.
by Benj. F. Rex, Esq., of the St. Louis bar.
UNITED STATES 'D. BAYAt7D.
As heretofore stated, the plaintiff had no right to institute these proceedings in the nature of a mandamus until a legal demand had been made by the marsha;l. The rule is discharged.
BAYAUD and another.
(Circuit Court, S. D. New York. January 22, 18B3.)
CRIMINAL LA-WAND PROCEDURE-PLEA OF GUILTy-!:NDUCEMENTB HELD OUT BY DISTRIC'f ATTORNEy-MOTION '£0 WITHDRAW PLEA.
On examinat.ion of t.he facts in this case, held, that. motion on the part of the defendants for leave to withdraw their plea of guilty as indicted should not be granted.
Motion to Withdraw Plea of Guilty. W. P. Fiero, for the United States. Bwj. F. Tracy, for defendants. BENEDICT, J. This is a motion on the part of the prisoners above named for leave to withdraw a plea of guilty made by them on the fifteenth of December last, or for a postponement of sentence nntil a future day. The ground upon which leave to withdraw the plea is asked, is that the prisoners were induced to make it by an assurance on the part of the district attorney in respect to his official action, which has not been fulfilled. It appears that at the October term, 1882, four indictments were fonnd against the prisoners for violations of the internal revenue laws. Two of these indictments were thereafter consolidated by the order of the court. At the December term the cases were upon the calendar for trial, and the government was ready to proceed with a large number of witnesses, whereupon the prisoners asked and obtained leave to file a plea of guilty to the consolidated indictments, and such plea was duly entered. This action on their part was taken upon the advice of intelligent and faithful counsel, who had represented them in this matter from the beginning. Before the entry of the plea of guilty it was understood between the counsel for the prisoners and the district attorney, that, in case the defendants should plead guilty to the consolidated indictments, the district attorney would enter a nolle prosequi upon the other two indictments, and would not move sentence UDon the consolidated into make an effort to dictments until the prisoners had an effect a compromise of their case at Washington. In pursuance of this understanding the plea in question was duly entered, and the district attorney delayed moving for sentence until the J annary term, and until he had been officially informed by the commissioner of internal revenue that the prisoner's offer of compromise had been finally rejected, and that no other offer of a compromise would be entertained. v.23F,no.14-46