Hennessey v. Alleghany Mining Co.

THE COURT.

A transfer of the cause to this court was ordered after judgment in the district court of appeal. Further examination has satisfied us of the correctness of the views expressed by the district court of appeal, and the opinion of that court is hereby approved and adopted.

The judgment appealed from is affirmed.

The opinion referred to reads as follows:—>

“This is an appeal by plaintiff from a judgment entered against him upon sustaining the demurrer of defendants to the complaint.

“Plaintiff did not ask leave to amend his complaint, but takes the position simply that the court erred in sustaining the demurrer. Upon this point appellant says, among other things: ‘The appellant . . . has not asked to be heard upon the question of amending his complaint, and these questions are no part of the case . . . This appeal is taken from the order and judgment as made, and is based on the sufficiency

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of the complaint. As appellant considered his complaint quite sufficient, there is no reason why he should have asked leave to amend.’

“We therefore address ourselves simply to the question, did the court err in sustaining the demurrer to the complaint?

“The complaint is in two counts, and was brought to have it adjudged that a certain assessment by the board of directors of the defendant corporation was invalid, and that the sale of the stock of plaintiff for such assessment was illegal and void, and that the certificates issued to the purchasers be delivered up and canceled.

“The entire complaint and each count thereof is a confused jumble of argument, conclusions of law, and allegations of fact. The demurrer was directed to each count of the complaint, and is both general and special. Insofar as the demurrer is special it is mainly directed to the allegations of paragraph III of each count of the complaint. This paragraph is substantially the same in each count, and in the first count is as follows: ‘Plaintiff alleges that said alleged assessment sought to be levied by the said board of directors as above set forth was not made or levied according to law, and that the same was and is null and void, and conferred no authority upon said corporation, or any of the officers thereof, to proceed to collect said assessment or to enforce any sale of the capital stock of said corporation for any alleged delinquency arising thereon; that said alleged assessment was inoperative and void in this, that no order for said assessment was made or passed by said board of directors on said date, in the form and manner required by law, specifying when and where and to whom said assessment should be paid; that the alleged order for the levy and collection of said proposed assessment contained matters and things not authorized by law for such purposes, and prescribed certain conditions, and purported to delegate to certain persons unknown and not mentioned therein, certain powers respecting the accounts and outstanding indebtedness of said corporation and the liquidation thereof, and the application of the same in respect to said assessment, which powers belong to and are conferred by law upon said board of directors, and are to be exercised by them, and not otherwise; that said order prescribing the alleged levy of said assessment also extended to certain members of said