BARR 11. PITTSBURGH PLATE-GLASS
Co. d al.
(Circuit COurt, W. D. Pell/TUJ1/l'lX1ll11.a. November 21,1889.)
CoRPORATIONS-RiGHTS Oli' BTOCKEOLDERS-INlUNOTION AGAINST CORPORATION.
A stockholder in a manufacturing corporation flIed a bill against the corporation. and all the directors thereof, and another stockholder, charging that the latter defendants had entered into a conspiracy to do an unlawful and fraudulent act, in furtherance of their individual interests, which would destroy or seriously impair the. of .the property of the corporation; that the directors and their codefendant 'stollkholder held among themselves seven-tenths of the stock of the cor· poration. ,and that they bad procured a vote of the stockholders authorizing the directors to carry out the project,-the bill praying for an injunction to restrain the corporation'from consummating the fraudulent transaction. ' Upon demurrer to the bill,. held., that the plaintiff could maintain the bill to his indiVidual rights, and that his suit was not to be defeated because the blU did not show a pre· vious effort on his part to secure redreu by an appeal to the directors or stookholdera for remedial aotion. '
In Equity. special demurrers to the bill of complaint. S. Schoyer, Jr., S, B. Schoyer, andW. R. Errett, for complainant. D. T. Wa,tson an,d Dalzell, Scott Gordon, for defendants. Before McKENNAN and ACHESON, JJ.
PER CURIAM. In so far, at least, as the bill relates to the Ford City Works, it is not founded. as the demurrers assume, upon a right of action belonging solely to the corporation defendant; but it is really based on the plaintifrs individual rights. The injury here complained of directly affects the plaintif;f personally, and he seeks the protecting power of the court against alleged fraud of the governinp; board of directors. The controversy il'j between the plaintiff and the directors of the corporation and another st9ckholder, who, in viqlation of the plaintiff's rights, are: about to proceedtt> do an unlawful act, which will destroy or seriously impair the Value of property in which the plaintiff has an interest; No one outside ofthe corporation has any concern in' the controversy, nor is litiyoutsider here sued. Thej}Orporation itself is areal defendant. the bill praying for an to restrain it from consummating the alleged fraudulent'transaction. The bill alleges not only that all the elirectors areacting in their own.j.nterest, and in fraud of the rights of the plaintiff, but also that they and tl1eirc<H)()nspirator (a defimdant herein) together hold seven-tenths of the stock of the corporation; and, further, that they have procured a vote olthe stockholders authorizing them to carry out the contemplated fraudulent project. In view, then, of these allegations, which for the present we must accept as true, it would be most unreasonable to defeat the plaintiff's suit because the bill does not show a previous effort on his part to obtain redress within the corporation by an appeal for remedial action to the directors or stockholders. The demurrers must be overruled, with leave to the defendants to answer the bill within 80 days; and it is 80 ordered.
SOWLES fl. WITTEBS.
SOWLES t1. 'WITTERS
(Oi/rCt/lttOourt, D. Vermont. November 9, 188t.)
Where complainant has a decree in equity that defendant pay her dividends on stock held by her, and defendant has against complainant an unsatisfied judgment at lawfor an assessment on said stock, the court, on motion, will order the amounts to be paid under the decree applied on the judgment, though the judgment was a former term, and complainant intends to appeal therefrom.
In Equity. Motion to sei oft' decree inequity against a judgment at law obtained at a former term by defendant against complainant. Kittredge Haskins, for oratrix. Ohe8ter W. Witters, prolBe. Edward A. Sowles, pro 8l.
WHEELER, J. The oratrix has an order for a decree that she is a creditor of the First National Bank of St. Albans to the amount of $26,034. 75, and that the defendant pay her dividends thereon. Sowles v. WitterB, 39 Fed. Rep. 403. The records of this court show that the defendant has an unsatisfied judgment against her for an assessment upon her stock in the same bank. Witters v. Sowles, 38 Fed. Rep. 700. The defendant moves, on settlement of the decree, that the amounts to be paid to her be decreed to be applied on the judgment against her, instead of paid to her in The oratrix objects because the judgment was at a former term and at law, and because she intends to prosecute a writ of error and an appeal from the judgment and decree. The decree would not disturb the judgment of the former term, but only satisfy it so far; and the judgment is in this court, although on the law side, and can' be found by mere inspection of the record without trial. A court may al,. ways inspect its own records to ascertain what is there, although it may not have power, after the terms, to alter judgments and decrees shown by them.. The writ of error does not vacate the judgment, and cannot now operate as a supersedeas. If the judgment is enforced, she will pay its amount to the defendant; if the decree is enforced, he will pay the amount of these dividends to her. The receipts and payments are in the same right in each behalf. Circuity will be avoided, and the judgment and decree be both carried out, by making the decree for the application of the dividends upon the judgment. The power of the court to so fTame its. decree as to make this set-off seems to be ample. Oonable v. Bucldin, 2 Aikens, 221; Rix v. Nevins, 26 Vt. 384; 8eUick v. Munson, 2 Vt. 13. Let the decree be so drawn and entered·