Overton v. Noyes

California Supreme Court Feb 5, 1918 No. S. F. No. 7737.Published

Before: Wilbur

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Holding. The court held that the statutory requirement for mining corporations to post balance sheets applies to corporations organized in California even if they conduct their mining operations in another state.

Issues

Whether the statutory requirement to post balance sheets applies to a California-organized corporation conducting mining operations exclusively outside of California.

Disposition. reversed

Quotations verified verbatim against the opinion

“Taking into consideration the history of the law and the purposes for which it is enacted, it is evident that it applies to corporations organized in this state for the purpose of conducting mining in another state.”

Synopsis

Mining Corporation—Statute—Posting Balance Sheet—Applicability op Statute to Corporation Operating Mine Outside the State.—'Section 588 oí the Civil Code requiring the secretary of every mining corporation whether organized under the law of this state, or of some other state, to post a balance sheet in a conspicuous place in the office of the company, and imposing a penalty for failure to comply, applies to corporations organized in this state for the purpose of conducting mining in another state.

Appeal—Order Striking Out Parts op Complaint—Record—Transcript on Appeal.—Where on appeal from a judgment it is sought to review an order striking out parts of the complaint, but it is impossible from the order to determine the specific parts of the complaint thus stricken out, the motion to strike out and the order made thereon referring to certain lines and pages of the complaint, and the complaint being printed in the transcript without any reference to the original paging and lines, an appellate court is not called upon to review such order.

Id.—Record—Motion and Order to Strike Out Parts op Pleading.— Under section 670 of the Code of Civil Procedure as amended by Statutes of 1907, page 720, an order striking out part of a pleading is a part of the judgment-roll, but the motion to strike out is not a part of the judgment-roll, even though it be printed in the transcript.

Pleading—Striking Out Parts—Form op Order.—Since orders striking out parts of a pleading are part of the judgment-roll the better practice would be to incorporate in such orders all the portions so stricken out, so that the judgment-roll, as a whole, would show unmistakably the matter stricken out.

WILBUR, J.

This is an appeal from a judgment ren dered on demurrer upon the ground that the complaint "does not state facts sufficient to constitute a cause of action.” The plaintiff, a stockholder in a mining corporation, organized under the laws of the state of California, and operating a mine in the state of Texas, but none in this state, sued to recover the penalty provided in section 588 of the Civil Code for failure to post in a conspicuous place in the office of the company the balance sheet therein required to be so posted. The question raised here is whether or not the section applies to the corporation in question. The statute reads as follows: “It is the duty of the secretary of every corporation formed for the purpose of mining, or conducting mining in California, whether, such corporation he formed and

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organized under the laws of the state of California or of any other state, territory, or foreign country, to keep at some place within the state of California,” etc. It is claimed by respondent that the words “in California” modify the phrase “corporation formed for the purpose of mining” as well as the phrase “or conducting mining in California.” An examination of the history and purpose of this law will assist in its construction. The first statute on this subject was enacted in 1874 (Stats. 1873-74, p. 866), and was entitled, “An act for the better protection of the stockholders in corporations, formed under the laws of the state of California, for the purpose of carrying on and conducting the business of mining.” Section 1 thereof provided: “It shall be the duty of the secretary of every corporation formed under the laws "of the state of California, for the purpose of mining, to keep,” etc. Then follow various requirements, amongst others, “and shall make out a balance sheet, showing the correct financial condition of the corporation. ’ ’ This balance sheet is required to be “open to examination and inspection upon demand by any such stockholder.” In 1880 this statute was again amended (Stats. 1880, p. 134) and it was there required that “such account or balance sheet shall be verified under oath by the president and secretary and posted in some conspicuous place in the office of the company.” In 1897 this statute was again amended (Stats. 1897, p. 38) and for the first time the phrase “or conducting mining in California” was introduced into the statute. The amendment read: “See.-l. It shall be the duty of the secretary of every corporation formed for the purpose of mining, or conducting mining in California, to keep,” etc. The phrase “or conducting mining in California” added nothing to the section as it theretofore read, unless it applied to corporations organized outside of the state of California and “conducting mining in California,” for as the section previously read it covered the activities of all corporations organized in the state of California for the purpose of mining, whether within or without the state of California; unless, of course, as contended by the respondent, the phrase “in California” thus added related back to and modified the phrase “formed for the purpose of mining,” as well as the newly added phrase “conducting mining.” If the latter contention is correct, the purpose of the amendment was to limit the

Overton v. Noyes

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Synopsis

WILBUR, J.

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