Kleinsasser v. McNamara

THE COURT.

After the appeal in. the above-entitled cause was placed on the calendar for oral argument, appellants filed an application under the authority of section 956a of the Code of Civil Procedure to take additional evidence.

The action was instituted in the Superior Court of Fresno County by appellants as stockholders of the Siberia Oil Company to enjoin the directors thereof from consummating a transaction whereby the properties of said company were about to be transferred to Delaney Petroleum Corporation; and the essential issues of fact upon which the action was heard and determined were whether, as appellants alleged in their complaint, the transaction was unfair to the Siberia Oil Company and was being consummated for the fraudulent purpose of furthering the private

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interests of the directors thereof. The trial took place before the Honorable Charles R. Barnard, judge of said court, who found against appellants on all issues, and judgment in favor of respondents was entered accordingly. The main ground urged for reversal is" that the evidence adduced at said trial was and is insufficient in law to support the findings. Other actions growing out of this same controversy and involving similar issues of fact were subsequently instituted by appellants or some of them in other counties, and have since been heard and determined therein. One of them, so the application herein alleges, entitled

Bussell et al.

v.

Bougeot et al.,

was commenced in the Superior Court of the County of Kings, and was heard and determined by the Honorable Ernest Weyand, as judge thereof, who, it is claimed, reached certain conclusions on the controlling issues of fact contrary to those reached by Judge Barnard in the action heard and determined in Fresno County. In view of the foregoing situation appellants filed the present application for the purpose of having the determination of the appeal taken from the judgment entered in the Fresno case temporarily suspended and the trial of the cause reopened before this court so as to allow them to introduce and have considered as part of the record on said appeal a large portion of the evidence introduced by appellants on the same issues at the trial of the action before Judge Weyand in Kings County, most of which, appellants assert, relates to facts “uncovered by them” subsequent to the trial of the action in Fresno County or to facts occurring thereafter, appellants’ contention being that, if received, such evidence would call for the making of new findings by this court contrary to those made by the trial court in Fresno County and confirming those made by the trial court in Kings County, and thus require not only a reversal of the judgment from which the present appeal was taken, but the entry of a directed judgment in favor of appellants.